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In re Derouselle, Christopher-Defendant; Applying for Reconsideration of this Court’s Order dated April 28, 2000; Parish of Orleans; Criminal District Court Div. “E” 382-356; to the Court of Appeal, Fourth Circuit No. 97-KA-2590. Reconsideration Denied. LEMMON, J., not on panel.

In re Charles Ray Alexander, Sr., et al., applying for Reconsideration of this Court’s Order dated January 14, 2000; Parish of Iberia, 16th Judicial District Court, Div. B., No. 88895-B; to the Court of Appeal, Third Circuit, No. 99-008 Reconsideration denied. The application was untimely. TRAYLOR, J., not on panel.

In re Messiah, Keith; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 295-139; to the Court of Appeal, Fourth Circuit, Ño. 99-K-2309 Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189. VICTORY, J., not on panel.

BENNETT, Judge. This is an appeal from a judgment fixing and making executory past due and unpaid child support. Sidney Hughes obtained a divorce from Mary Tigner Hughes on November 10, 1960. The decree also awarded custody of the four minor children of the marriage to Mrs. Hughes and set child support in the amount of Fifteen Dollars ($15.00) per week. On October 30, 1974 a rule to show cause was filed seeking a judgment for unpaid child support for three years prior to the date of filing of the rule and for $15.-00 per week from the date of the filing of the rule to the date of determination. The defendant-in-rule filed a responsive pleading asserting various defenses. The rule was called for trial on December 13, 1974. No attempt was made to adduce evidence and the case was submitted on memoranda. On June 27, 1975, judgment was rendered in favor, of plaintiff-in-rule in the amount of $2,916.00, which amount consisted of $2,340.00 for the three year period prior to the date of filing of the rule and $576.00 for the period from October 30, 1974 to June 27, 1975. The defendant-in-rule appeals from that judgment asserting four errors committed by the trial court. I. The Court erred in overruling the pleas of prescription laches. This contention is based on the fact that the 1960 judgment awarding child support had not been revived and more than ten (10) years had elapsed between the rendition of that judgment and the time the rule was filed seeking to determine the amount of back alimony due and owing. In Arabie v. Arabie, 230 La. 1036, 89 So.2d 890 (1956), the Supreme Court re-j ected an identical contention stating: “Appellant also says that the doctrine of waiver, laches, and estoppel is applicable in this case because for more than 10 years from the date of the rendition of the alimony judgment no action was taken by his former wife to obtain its enforcement and no payments were made by him. Counsel cite no law in support of this contention. Moreover, in the case of Pisciotto v. Crucia, 224 La. 862, 71 So.2d 226, this court held that the right to receive back alimony in a lump sum is not waived by the divorced wife’s failure to make periodic demands on her former husband. See also Gehrkin v. Gehrkin, 216 La. 950, 45 So.2d 89. Fur thermore, we see no reason why these doctrines should apply simply because appellant has failed to make the alimony payments. “Article 3544 of the Civil Code provides that in general all personal actions except those before enumerated are prescribed by 10 years, and in Article 3547 it is stated that all judgments for money, whether rendered within or without the state, shall be prescribed by the lapse of 10 years from the rendition of such judgment. Appellant argues that these articles are applicable here, and that since more than 10 years have elapsed since the judgment of divorce in which appellee was awarded custody of the minor child and alimony for the maintenance and support of the child, these articles are applicable, and appellee accordingly cannot recover in these proceedings. “In Wright v. Wright, 189 La. 539, 179 So. 866, this court after citing Article 227 of the Civil Code said that fathers and mothers have the obligation of supporting, maintaining, and educating their children, that the legal duty imposed upon a father to support his children continues during minority and is not affected by divorce or separation, that a judgment for alimony is not a final judgment but is one always subject to review and to change and modification, whereas a money judgment is a vested right and not subject to change. In others words, a judgment to pay alimony is not a money judgment founded on debt but is one enforcing a continuing legal obligation of the father to support his minor child. See Fazzio v. Krieger, 226 La. 511, 76 So.2d 713. “In the Wright case, supra, the court held that Article 3547, which provides that all judgments for money shall prescribe by the lapse of 10 years, was not applicable to a judgment for alimony rendered in behalf of minor children against their father, and that a plea of prescription under this article was properly overruled by the trial judge. See also Gehrkin v. Gehrkin, supra. “In discussing the prescriptive period applicable to actions for arrearages of alimony, this court said in Miller v. Miller, 207 La. 43, 20 So.2d 419, 421: “ ‘Since Article 3538 of the Revised Civil Code specifically provides that actions for arrearages of alimony are prescribed in three years, and Articles 3544 and 3547 (as amended) of the Revised Civil Code are so general in their nature, we are compelled to arrive at the conclusion that the provisions of Article 3538 govern. “ ‘Under the accepted rule of construction, Article 3538 being a special law insofar as it applies to alimony, it must be given precedence over the general provisions heretofore mentioned.’ ” These exceptions are without merit. The ruling of the trial court is correct. II. The Court erred in issuing the judgment herein without a contradictory hearing. A perusal'of the record indicates the following pertinent information: On October 30, 1974 the rule seeking back child support was filed. The defendant in rule was ordered to show cause on December 13, 1974 why a judgment should not be rendered. Domiciliary service was effected on November 4, 1974. On December 13, 1974 the defendant filed a responsive pleading and agreed to submit the matter on memoranda. The defendant did not seek a continuance nor was any effort made to produce evidence supporting the defenses contained in the pleading filed by him. Under the circumstances the defendant cannot now complain of being denied his day in court. He had such a day. Failure to utilize it to its fullest can only be attrib uted to the defendant. There is no merit to this contention. III. The court erred in awarding an amount in excess of $2340.00. This contention complains of the award of child support for the period from the date of filing of the rule to the date of rendition of judgment. We find no error in making an award for that period. The rule filed herein contained a prayer for an award for the period. The defendant produced no evidence that he had paid the child support due during the period. A court may properly include unpaid child support occurring during pendency of an action to determine and make child support executory. See Arable v. Arable, Supra. IV. The Court erred in calculation of the amount of alimony awarded for the period during which the rule was pending. This contention attempts to take advantage of a discrepancy in the language of the judgment. In awarding child support for the period during which the rule was pending, the judgment states: “At the rate of $15.00 per week for twenty-four (24) weeks being from October 30, 1974 (the date of filing of this rule) to June 27, 1975, totaling .$576.00.” The appellant argues that the judgment grants an award for 24 weeks at $15.00 per week, a total of $360.00, and that the award of $576.00 is an error in computation. In our opinion, the judgment is ambiguous. In the construction of an ambiguous judgment, resort may be had to the entire record to aid in arriving at its meaning. Rodrigue v. Ziifle, 288 So.2d 630 (La.1974). See also, Weisgerber v. Weisgerber, 270 So.2d 313 (La.App. 1st Cir. 1972). Our review of the record convinces us that the trial court intended to make an award for the period from October 30, 1974 to June 27, 1975, a period of 34 weeks. The petition asked for an award for the period during which the cause was pending. The period of pendency was actually 34 weeks. No claim has been made that the defendant in rule is entitled to credit during the pertinent period because of payment or other reason. We find that the plaintiff in rule is entitled to an award for 34 weeks at $15.00 per week or a total of $510.00. The amount awarded, $576.00, is excessive. Therefore, the judgment rendered below is amended and ordered reduced by the amount of $66.00 leaving a total of $2,850.-00. Costs are taxed to Appellant. AMENDED and AFFIRMED.

In re McGee, Wilton; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 5-95-772; to the Court of Appeal, First Circuit, No. 97 KA 1027 Denied. KIMBALL, J., not on panel.

In re Muralles, Mario A.; — Defendant; Applying for supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 98-1464; to the Court of Appeal, Fifth Circuit, No. 99-K-947. Granted; Remanded to the Court of Appeal for briefing, argument and a full opinion. CALOGERO, C.J., not on panel.

In re Osberry, Jerry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 367-651; to the Court of Appeal, Fourth Circuit, No. 99-K-2613 Denied. Untimely, repetitive and not cognizable on collateral review, La. C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172; La.C.Cr.P. art. 930.4(A); cf. La. C.Cr.P. art. 930.4(D). VICTORY, J., not on panel.

JOHNSON, J., would grant the writ application for the following reasons. Defendant was convicted of distribution of cocaine and was sentenced to life imprisonment under the habitual offender statute. During jury selection, the state used its peremptory challenges to strike ten African-Americans. The trial court allowed the challenges based upon the fact that the state provided a race-neutral explanation for the challenges. Pursuant to LSA-C.Cr.P. art. 795(C) and Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), neither the state nor the defendant may make any peremptory challenges based solely upon the race of the juror. The state contends that nine of the jurors were stricken because of their testimony that they knew the defendant. However, none of the jurors who stated that they “know” the defendant testified that they had any type of friendship or close relationship with him. Lincoln Parish is a small, rural parish. Most of its residents, particularly its African-American residents, know, or know of, each other through family or community ties. Although knowledge of a defendant is a sufficient race-neutral reason for the exercise of a peremptory challenge, State v. Jackson, 29,470 (La.App. 2 Cir. 8/20/97), 707 So.2d 990, a simple statement that a potential juror “knows” a defendant, without establishing that the juror has ever had any personal relationship, or at the very least, direct contact, with that defendant, is not sufficient to justify removing that juror from jury service. I do not believe that a vague acquaintance with a person, or the knowledge of a person’s existence in the community, is sufficient to justify dismissal of jurors from the jury panel. Accordingly, I would grant the defendant’s writ application and order a new trial.

COVINGTON, Judge: This is a devolutive appeal from a judgment dismissing the plaintiffs’ suit for in-junctive relief from alleged violations of building restrictions within the Camelot Subdivision in the Parish of East Baton Rouge, Louisiana. The suit was brought by the Camelot Citizens Association, and fifteen property owners who are members of the Association, against the defendant, Michael L. Stevens, the owner of and builder upon Lot 30 in said subdivision, to require him to comply .with the subdivision restrictions and to correct any violation thereof. The basis for the plaintiffs’ complaint is that the defendant has built a residential building set back a distance of approximately 25 feet from the front property line in violation of the subdivision restrictions which provide that no building shall be located on any lot nearer to the front line than 30 feet. The defendant opposed the granting of injunctive relief on the grounds that the official subdivision map (which controls in the case of a conflict between the official map and the building restrictions) designates a 25-foot minimum set-back, and that the defendant is in compliance with the building restrictions, that the building restrictions are ambiguous and should be interpreted favorably to the defendant, and that, if there has been a violation, the Association and its 'members have acquiesced in the violation. The petition in, this suit was filed on May 14, 1975, requesting that a preliminary injunction issue prohibiting the defendant, “ . . .or anyone acting on his behalf or in his interest or as his successor, from the violation, in any manner, of the subdivision restrictions for Camelot Subdivision.” The cause then came on promptly for a hearing on the rule nisi to have the defendant show cause why a preliminary injunction should not issue herein, prohibiting the defendant from further violation of the subject building restrictions. After a hearing, the trial court requested briefs on the question of law involved in the suit. Subsequently, the matter was re-opened for the receiving of additional evidence. Then the trial court rendered judgment recalling, vacating and setting aside the rule nisi and dismissing the plaintiffs’ suit at their costs. It is from this judgment that the appeal has been taken. The subject building restrictions are of record in the office of the clerk and recorder for the Parish of East Baton Rouge. In a like manner, the official subdivision map is on file. The notarial act by which the defendant purchased the subject lot contains a reference to the building restrictions in the following language: “Purchaser is aware of the fact that there are restrictions affecting this property recorded in Conveyance Book 2271, Folio 8, as amended in Conveyance Book 2329, Folio 491, Official Records of the Parish of East Baton Rouge, Louisiana. This reference to these restrictions is not intended to, nor does it hereby, reimpose said restrictions already recorded, but merely calls them to the attention of purchaser.” The particular restriction which is the subject of these proceedings is the front set-back requirement. The building restrictions in pertinent part read as follows: “No buildings (and this includes carport and detached covered structures) shall be located on any lot nearer to the front lot line than Thirty (30) feet . . . .” The official subdivision map fixes the front set-back requirement at 25 feet. The building in question is at its nearest point 25.3 feet from the. front lot line. The concrete foundation or slab on which the subject building is erected is 26.4 feet at its nearest point from the front line. It cannot be questioned that the owners of property in a subdivision have the right to impose building restrictions on their land in order to further a general plan of development. See Yiannopoulos, Civil Law of Property, sec. 104, page 310 (1966); Smith, Building Restrictions in Louisiana, 21 La.L.Rev. 468 (1961); Tag-gart, “Equitable Restrictions” in Louisiana, 33 Tul.L.Rev. 822 (1959). To ascertain the effect to be given to such building restrictions, we must first decide whether such a restraint on the use and disposition of property should be classified as a servitude, a real obligation, a covenant running with the land, or some other classification. Professor Yiannopoulos holds the opinion, and we agree with him, that due to the unique nature of building restrictions, they should be classified as “sui generis real rights akin to predial servitudes,” and they should be governed by the general rules applicable to predial servitudes, subject to any exceptions established by a special legislation or jurisprudence as to their creation, enforcement or termination. Yianno-poulos, Real Rights: Limits of Contractual and Testamentary Freedom, 30 La.L.Rev. 44, 63 (1969); also see Fitzwater v. Walker, 281 So.2d 790, 792 (La.App.3rd Cir. 1973). We can thus say that building restrictions, such as those in question, are valid and enforceable where inserted in deeds in pursuance of a general plan devised by the ancestor to maintain certain building standards; such restrictions inure to the benefit of all other grantees under a general plan of development and are real rights running with the land, which the grantees or their successors in title may enforce by injunction proceedings. See Salerno v. De Lucca, 211 La. 659, 30 So.2d 678, 679 (1947); Edwards v. Wiseman, 198 La. 382, 3 So.2d 661, 663 (1941); Herzberg v. Harrison, 102 So.2d 554, 555 (La. App.lst Cir.1958). However, restrictive convenants are strictly construed against the grantor and liberally in favor of the grantee, all doubt being resolved in favor of the free and unrestricted use of property and against restricted use. See Melrose Civic Ass’n v. Universal Builders, Inc., 306 So.2d 905, 906 (La.App.1st Cir. 1974), writ refused, 310 So.2d 638 (La.1974); Fuller v. Hill Properties, Inc., 259 So.2d 398, 400 (La.App.2nd Cir.1972). In the instant case, the trial court held that there was no substantial violation of the building restrictions. In so holding, the trial judge said: “ . . . (T)here are many equitable considerations here. You have the fact that the defendant bought the lot with the understanding that it had a twenty-five foot set back line. You have the fact that the map showed a twenty-five foot set back line. You have the fact that the defendant had progressed to the point of substantial construction prior to the time that this suit was brought. You have the ambiguity and confusion within the subdivision restrictions which certainly warrants a revision of them to spell out what is meant without any reference to A-l zoning. This has not been done and people that go out and buy lots under the attendant circumstances cannot help but be prejudiced when they go to that expense plus the expense of building only to find out that they are in violation by three and a half or four feet. We have to weigh the equities of the builder against the welfare of the owners in the subdivision. This is just not a substantial case of violation and, certainly, the attendant circumstances and the intent of the developers is such that it would be unwarranted to force the defendant to tear down this particular house. “For all of these reasons, the injunctive relief is denied and plaintiffs’ suit is dismissed at plaintiffs’ cost.” We have reviewed the evidence and the law in the instant case. We agree with the trial court that there has been no substantial violation of the building restrictions by the owner-builder of Lot 30 of Camelot Subdivision. Under the circumstances in this case, an encroachment over the minimum setback line of approximately five feet is minor and insignificant. There is no showing that this slight deviation will adversely affect the property values of other property in the subdivision. We, therefore, hold that the set-back in the instant case, if it does constitute a technical violation of the building restrictions, is so minor and insignificant as not to justify the injunctive relief sought by the plaintiffs. See Fuller v. Hill Properties, Inc., supra, at 401. The principle involved here can be analogized to the one considered by the court in Guyton v. Yancey, 240 La. 794, 125 So.2d 365, 370 (1960), wherein the Supreme Court quoted with approval from the opinion of the Court of Appeal (115 So.2d 627) as follows: “Such technical violations can in no wise, we think, add to or take from the objects and purposes of the general scheme of development and will, therefore, be disregarded as immaterial to the issue.” We conclude that the building restrictions of the Camelot Subdivision have not been violated m any material respect. Accordingly, we affirm the judgment of the trial court at the appellants’cost. Affirmed.

In re: Edwin Lewis applying for Writs of Certiorari, Prohibition, Mandamus and for Stay Order. Writ granted: The trial court is ordered to rule on the applicant’s motion for preliminary examination immediately. La.C. Cr.P. art. 292. DIXON, J., is of the opinion the preliminary hearing should be ordered by this Court immediately. DENNIS, J., is of the opinion the preliminary examination should be granted forthwith.

HOOD, Judge. This case has been consolidated for trial and appeal with the cases of Louisiana Resources Company v. Greene, La.App., 329 So.2d 479; and Louisiana Resources Company v. Pere, La.App., 329 So.2d 480. We granted certiorari and a stay order in these consolidated cases to review the trial court’s refusal to grant defendants’ motion for a continuance. After denying that motion, the trial court proceeded with the trial of the exceptions of no right of action, no cause of action, vagueness, and prematurity, which had been filed by defendants in this suit. Writs were granted and the proceedings were stayed before that trial was completed. After reviewing the record and the arguments of counsel, we have decided that defendants are entitled to a continuance of not less than ten and not more than twenty days from and after the date of this judgment before being compelled to resume the trial of the above exceptions. For these reasons, the writ issued herein is maintained, and judgment is rendered remanding the case to the trial court, and directing the trial judge to proceed with or to resume the trial of this case in not less than ten or more than twenty days from and after the date of this judgment. The costs of this proceeding are to be assessed at the time a final judgment is rendered in this case. Writ maintained and case remanded. WATSON, J., dissents and assigns reasons.

In re: Victor E. Coursey, Jr. applying for Remedial and Supervisory Writs. Writs denied. This Court will not interfere with orderly proceedings in the trial court, in the absence of a showing of irreparable injury. Relator has a remedy by appeal in the event of an adverse judgment on the merits. MILLER, J., would not favor granting a writ but would vote to grant a stay order while Relator’s, as yet, unlodged appeals to this court, are pending, and will assign written reasons.

In re Application for Reconsideration on this Court’s own Motion; Parish of St. Charles, 29th Judicial District Court, Div. E., No. 46-953; to the Court of Appeal, Fifth Circuit, No. 99-C-950 On our own motion, reconsideration granted. Writ denied. JOHNSON, J., not on panel.

In re Pollard, James; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 99-01377; to the Court of Appeal, Fourth Circuit, No. 2000-C-1188 Stay denied. Writ denied. LEMMON, J., not on panel.

J^FITZSIMMONS, J. Plaintiffs, William and Patricia Fussell, filed suit for damages caused by a rear end collision. A wrecker driven by Mr. Brian Stuckey, while in the course and scope of his employment with Roadrunner Towing and Recovery, Inc., rear-ended a car driven by Mr. Fussell. Defendants, Roadrunner Towing and Recovery, Inc., its insurer, John Deere Insurance, and Brian Stuckey, appealed the judgment in favor of the Fus-sells. We remand. FACTS AND PROCEDURAL BACKGROUND This case was originally scheduled to be tried by a jury. By a motion in limine, the Fussells challenged the defendants’ expert, Dr. Gerard Harris. Plaintiffs did not attack specific methods or reasoning in the report submitted by Dr. Harris. Rather, plaintiffs argued that the expert testimony was not relevant. The trial court cited Arceneaux v. Howard, 633 So.2d 207, 210 (La.App. 1st Cir. 1993), writ denied, 93-3128 (La.2/11/94), 634 So.2d 833, for the proposition that, if the medical and lay testimony is sufficient to prove that the collision caused “some injuries,” the minimal force of the impact that caused the injuries is irrelevant. The trial court noted that on different facts, the force of the impact “may be ” relevant. Notwithstanding that belief, the court found that Dr. Harris’s opinion would not assist the jury and would be confusing. Dr. Harris’s testimony was excluded. The defendants proffered Dr. Harris’s report. After a trial on the merits, the trial court held that defendants caused, and were liable for, the injury to Mr. Fussell. Mr. Fussell received $240,000 for general damages and $33,091.22 for medical expenses. Mrs. Fussell was awarded $15,000 for loss of consortium. Defendants complain of: (1) the trial court’s exclusion of defendants’ expert, (2) the trial court’s finding that the evidence was sufficient for causation, (3) the amount of general damages, the amount for loss of consortium, and (4) the award of $1,828 in medical expenses, which were not related to the accident. Because we find merit in defendants’ argument on the exclusion of their expert, we pretermit discussion of the other assignments of error. JjEXPERT OPINION If “scientific ... knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” La. C.E. art. 702; Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, 99-2257, pp. 12-13 (La.2/29/00), 755 So.2d 226. In the context of scientific knowledge, the “adjective ‘scientific’ implies a grounding in the methods and procedures of science.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 2795, 125 L.Ed.2d 469 (1993). The “word ‘knowledge’ connotes more than subjective belief or unsupported speculation.” Id. The admission of evidence is subject to the trial court’s discretion. State v. Catanese, 368 So.2d 975, 983 (La.1979). In State v. Foret, 628 So.2d 1116, 1123 (La.1993), the Louisiana Supreme Court adopted the guidelines for the admissibility of expert opinion enunciated by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). These guidelines require that the expert opinions be grounded in approved methods and procedures of science, rather than just subjective belief or unsupported speculation. The trial court must ensure that the scientific “evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589, 113 S.Ct at 2795. Before the expert opinion can be admitted, the trial court must make “a preliminary assessment” that “the reasoning or method ology underlying the opinion is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts at issue.” Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796; Vardaman v. Baker Center, Inc., 96-2611, p.6 n.6 (La. App. 1 Cir. 3/13/98), 711 So.2d 727, 731 n. 6. The court must also determine whether the “probative value” of the expert testimony or opinion would be “substantially outweighed by the danger of’ confusion or an undue prejudicial effect on the fact finder. La. C.E. art. 403; see Foret, 628 So.2d at 1127; State v. Brooks, 98-1151, p.19 (La.App. 1 Cir. 4/15/99), 734 So.2d 1232, 1242. RELEVANCY On the issue of relevancy, the Ar-ceneaux decision is not determinative here. In Arceneaux, the plaintiff received a contusion to the head during a head-on collision at 30-35 mph. Mr. Arceneaux’s seatbelt broke and his car was totally destroyed. The Lmedical and lay testimony for causation was rebutted only by speculative opinions. Thus, the material facts were not genuinely in dispute. From those facts, the level of the impact would seem irrelevant. As the force of impact in a collision lowers, and the seriousness of the injury rises, expert testimony becomes more relevant. An expert’s commentary on speed, rate of acceleration, force of impact, and the correlation to injuries suffered as exemplified in reliable published studies would become an integral part of the defense or plaintiffs case. A plaintiff or a defendant cannot be deprived of their right to offer a reasonable presentation of issues by the rigid, artificial application of a juris-prudentially created aid for the proof of causation. Each particular case must be reviewed on its own facts. In this case, a seemingly minor complaint of pain in the cervical area was followed by a subsequent serious herniated disk that required surgery. The wrecker speed was not a settled question, but depended on a choice of conflicting facts. Mr. Fussell’s surgeon, Dr. John Clifford, opined that a low force of impact could cause the type of injury reported by Mr. Fussell. Dr. Clifford based the opinion that the accident caused the herniation on Mr. Fussell’s assertion that the car moved forward five feet upon impact with the wrecker. However,- if the impact was not of that level, the doctor stated that he would reconsider his opinion. In his deposition, the surgeon stated that the accident, the only trauma reported to him, probably caused the subsequent more serious injury. That was but one expert opinion. The defendants had .the right to present a rebuttal. Thus, evidence of the speed, force of impact, and studies correlating level of impact, with possible injuries, would be relevant to the disputed issues here. The testimony sought to be submitted had “a valid scientific connection to the pertinent inquiry .... ” DaubeH, 509 U.S. at 592,113 S.Ct. at 2796. If the trial court had allowed both parties to present their experts before making its factual determinations, the trial court’s choice of alternative permissible views would not have been clearly wrong. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 883 (La.1993). However, the defendants’ expert was not allowed to present an alternative view. RELIABILITY To the extent that the trial court reviewed the reliability issue, it was not the reliability of the recognized field of biomechanics or whether a qualified doctorate in that [sfield should be allowed to testify. The only information this court has to review is the proffered report. Thus, the question before us is the reliability of the reasoning and methodology propounded in the report. Dr. Harris worked for Forensic Technologies International Corporation (FTI). He was asked to determine the speed and acceleration rate of the wrecker; and, whether the injury was consistent with those forces. The report outlined the material reviewed: photographs of the vehicles after the accident; repair estimate for the car; statements by Mr. Fussell, Mr. Stuckey, and Mr. Stuckey’s boss; and Mr. Fussell’s medical records. The analysis for the speed and rate of acceleration was, as follows: Based on crash test data for vehicles similar to the Chevrolet and wrecker involved in this accident and using conservation of energy, conservation of momentum, and other engineering principles, FTI has determined that the speed of Mr. Fussell’s Chevrolet was no more than 6.9 mph, resulting in an average forward acceleration of no more than 3.2g’s for a duration of approximately 100 milliseconds (msec) in this rear-end collision. To exercise its “gatekeeping” responsibilities, it is the scientific validity of the underlying reasoning and methodology that the trial court must review in its “preliminary assessment.” Daubert, 509 U.S. at 589 n. 7 & 592-93, 113 S.Ct. at 2795 n. 7 & 2796. The gatekeeper must also decide “whether that reasoning or methodology properly can be applied to the facts in issue,” not whether the expert went to the scene or included specific facts in the conclusions drawn. Daubert, 509 U.S. at 593, 113 S.Ct. at 2796 (emphasis added). The focus of the gatekeeper under Code of Evidence 702 “must be solely on principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595, 113 S.Ct. at 2797. The report’s conclusions on injury possibilities are based on the initial findings using standard mathematical formulas for calculation of speed, rate of acceleration, and force of impact. Additionally, we note that the injury conclusions were drawn from studies published in scientific and professional journals, which were not challenged. However, the analysis section of the report did not reference the specific facts underlying the reasoning and the conclusions. The analysis did not provide the calculations used. These omissions may have led the trial court to confuse the weight to be given the opinion with the issue of admissibility under Code of Evidence 702. Any alleged failure to visit the scene or supply specific facts in the analysis or conclusion provides a basis for attack by plaintiffs’ cross-examination. Under the particular facts | fihere, the failures alleged do not require exclusion under the Daubert and Foret guidelines for reliability. UNDUE PREJUDICE Finally, on this record, the defendants’ expert’s opinion would no more prejudice or confuse the fact finder than the opinions given by Dr. Clifford in the same area. Dr. Clifford’s opinion also referenced force vector and injury mechanisms at various speeds, but without citation to the basis for the reasoning or methodology he used. For these reasons, we find that the trial court erred in excluding the testimony of the defendants’ expert as confusing and offering no assistance to the trier of fact. Defendants have the right to rebut proof offered by plaintiffs, even plaintiffs that may assert a Housley presumption. See Housley v. Cerise, 579 So.2d 973 (La.1991). DE NOVO REVIEW OR REMAND As we have noted, the defendants chose to proffer only the report. If the testimony of the expert, on direct and on cross, had been taken and proffered, it would not be necessary to remand. However, to decide the case by de novo review based only on the bare bones report would impermissibly deny the parties the right to present their cases fully. The defendants would be denied the opportunity to explain how the reasoning and methods chosen “can be applied to the facts at issue.” Daubert, 509 U.S. at 593, 113 S.Ct. at 2796. The plaintiffs would be denied an opportunity to expose weaknesses in the expert’s testimony. Without such an exchange and subsequent evaluation by the trial court, we cannot conduct a meaningful or constitutionally valid de novo review. Addition ally, the trial court should have the opportunity to make credibility rulings on the new testimony. We realize that after the expert testimony, the parties may feel it necessary to recall witnesses to rebut or confirm statements by the expert. Thus, we believe it is necessary, in this particular case, to vacate the judgment, and remand for a new trial. In lieu of a complete new trial, the parties may agree to have the trial court review the new expert testimony, and any other new testimony deemed necessary by the parties, and then substitute that supplemented record for a complete new trial. 1 CONCLUSION We remand for a new trial. The costs of this appeal are assessed to the plaintiffs. JUDGMENT VACATED, CASE REMANDED. . The trial was actually conducted as a bench trial.

U CARAWAY, Judge. Defendant was convicted of two counts of aggravated rape which occurred to separate victims in the Monroe area in early 1997. He was sentenced to serve consecutive terms of life imprisonment at hard labor without the benefit of probation, parole or suspension of sentence. Defendant appeals his convictions, assigning six assignments of error. Finding no merit to defendant’s arguments, we affirm. Facts On May 28,1997, the defendant, Edward Earl Harris (“Harris”), was charged by grand jury indictment of two counts of aggravated rape in violation of La. R.S. 14:42. The facts leading up to Harris’s arrest are as follows. In February 1997 in Monroe, Harris’s first victim (“AR”) was awakened at 5:00 a.m. by the defendant lying next to her in her bed, his face covered with what appeared to be a black sheet. When AR asked the defendant about his identity, he called her by her first name and told her to shut up. He then placed a blindfold over her eyes, told her that he had a gun, which he pressed against her throat, and threatened to use the gun if she did not comply with his demands. Harris then performed oral sex on AR and raped her. Penetration occurred and the defendant ejaculated. About thirty minutes after Harris left AR’s apartment, she went to the home where her boyfriend was staying. She told her boyfriend what happened, and they called 911. Upon investigation of the crime scene, Ouachita Parish Sheriffs Deputy Connie Miller (“Deputy Miller”) found a blue bandana behind AR’s apartment door; the bandana did not belong to AR or her boyfriend. Also, a black jacket owned by AR was discovered to be missing shortly after the crime. A medical ^examination of AR performed on the morning of the rape confirmed sexual intercourse had taken place. The facts giving rise to the second charge of aggravated rape occurred on April 4, 1997. At about 9:00 that evening, Harris’s second victim (“LC”) came home from work to her apartment in West Monroe. LC left her keys, cell phone and purse on her kitchen table and left her door unlocked and open while she walked her dog. Once back in her apartment, LC phoned her neighbor to ask him about a suspicious black man she saw her neighbor talking to. Her neighbor told her that the man said that he was looking for someone in the apartment complex, mentioned a name that the neighbor did not recognize, and walked away. While LC was in bed watching television at 9:49 p.m., she heard someone “jiggling” at the back door. She again telephoned her neighbor and 'asked him if he could see who was at the door. The neighbor told her that he could not see anyone. LC then saw Harris standing in her hallway, and told her neighbor that someone was in her apartment. Her neighbor called 911 and reported the incident to the police. Harris had a gun and told LC not to look at him. He put the gun to her, blindfolded her with her black robe, and called LC by her first name. Harris raped LC. Penetration occurred and as the defendant ejaculated, someone began knocking on LC’s apartment door. Police officers soon entered LC’s apartment, pushed Harris against the wall and questioned LC. A search of LC’s apart ment revealed the gun Harris used on the floor in LC’s closet. After a trial by jury, Harris was convicted on both counts of aggravated rape. He was sentenced to serve consecutive terms of life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence. He appeals |shis guilty verdict, complaining that (1) the evidence was insufficient to convict him; (2) the trial court erred when it denied his motion to sever; (3) the trial court erred in failing to dismiss a juror for cause; (4) the trial court erred in allowing testimony protected by the physician-patient privilege; (5) the trial court erred when it failed to hold a recess to allow defendant to locate a subpoenaed witness; and (6) the trial court erred in denying defendant’s motion for new trial and his post verdict judgment for acquittal. Finding no merit to Harris’s assertions, we affirm both his conviction and sentence. Discussion Sufficiency of Evidence Harris argues that the state did not prove beyond a reasonable doubt that he raped AR. He contends that the evidence was entirely circumstantial, and that the only evidence connecting him to AR’s rape was the black jacket found in a later search of his wife’s residence. Harris claims that the black jacket and other seized items could have belonged to any of the other residents of the home. He further argues that no one, including AR, identified him as her rapist. Also, Harris argues that there was not sufficient evidence to convict him of LC’s rape. He contends that LC gave conflicting accounts of the rape, including conflicting information concerning actual penetration. He argues that no medical testimony was admitted to support LC’s claim of rape with physical findings. The proper standard of appellate review for a sufficiency of evidence claim under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333; State v. Bellamy, 599 So.2d 326 (La.App. 2d Cir.), writ denied, 605 So.2d 1089 (La.1992). The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747. When circumstantial evidence forms the basis for conviction, such evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:43s. The court does not determine whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events; rather, when viewing the evidence in the light most favorable to the prosecution, whether the possible alternative hypotheses is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson v. Virginia. State v. Owens, supra. This is not a separate test from Jackson v. Virginia. Id. An appellate court does not evaluate credibility determinations made by the trier of fact. La. Const, art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury’s decision to 1 ^accept or reject the testimony of a witness in whole or in part. State v. Bosley, supra; State v. Rogers, 494 So.2d 1251 (La.App. 2d Cir.1986), writ denied, 499 So.2d 83 (La.1987). Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Davis, 27,961 (La.App.2d Cir.4/8/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12. In this case, to convict Harris of the crime of aggravated rape, the state needed to prove beyond a reasonable doubt that (1) anal or vaginal sexual intercourse occurred, (2) without the lawful consent of the victim, (3) and the rape was committed by any one or more of various threatening circumstances listed under La. R.S. 14:42. Here, the state put forth evidence showing that Harris used force to overcome his victims, that-Harris prevented his victims from resisting the rape with threats of great and immediate bodily harm, and that Harris prevented his victims from resisting the rape because he was armed with a dangerous weapon, i.e., a handgun. It is clear from AR’s undisputed testimony that she was a victim of aggravated rape. She testified that, without her lawful consent, she was forced to engage in sexual intercourse, wherein penetration occurred. Her testimony regarding vaginal penetration was supported by the medical testimony of the emergency room physician. AR also testified that the rapist told her that he had a gun, which he pressed against her throat and threatened to use if she did not comply with his demands. This proved that Harris was both armed with a dangerous weapon at the time of the rape, and that he prevented AR from resisting the rape by threats of great and immediate bodily harm, accompanied by .the apparent power of execution. | ^Furthermore, the search of the residence produced a black jacket that was identified at trial by both AR and her boyfriend as belonging to AR. Also, when questioned by Officer Jay Via about some evidence seized in the search, Harris immediately referred to the black jacket and told Officer Via that it belonged to his niece, even though Officer Via had never told Harris that the black jacket was seized. The search of the residence also produced a green bag containing two bandanas, a black face mask that completely covers one’s head with no mouth or eye openings, and a pager receipt bearing the name of “Emanuel” Harris. The bandanas were very similar to the bandana left behind by AR’s rapist. The face mask was identified by AR as the one worn by her assailant. Despite AR’s inability to make a. direct identification, the extensive circumstantial evidence shows beyond a reasonable doubt that Harris was, in fact, her rapist. Items of physical evidence seized from Harris’s wife’s residence link him to the crime, the most condemning of which is AR’s black jacket. Furthermore, AR’s boyfriend positively identified Harris as the same person who had appeared at the door of AR’s apartment late one night prior to the crime. The boyfriend testified that Harris identified himself as “Emanuel,” that he was wearing a bandana like those found in Harris’s residence and that he stated that he was looking for someone who lived in the apartments. In addition, AR’s boyfriend testified that Harris was wearing a ponytail-like hairpiece later seized at the residence. Viewing the physical evidence and the inferences drawn from the circumstantial evidence in the light most favorable to the prosecution, it is clear that the evidence was sufficient to prove that Harris committed the aggravated rape of AR. 17Likewise, the evidence presented at trial was sufficient to convict Harris of LC’s rape. LC testified that, without her lawful consent, she was forced to engage in sexual intercourse, wherein penetration occurred. LC also testified that Harris had a gun, which he pointed at her and threatened to use if she looked at him. Thus, all of the essential elements of the crime of aggravated rape were proven by the state. Harris argues that he did not rape LC, and that the act was consensual sex in exchange for drugs. However, through the cross-examination of the state’s witnesses, Harris established no evidence to support this allegation. Viewed in the light most favorable to the prosecution, the jury was correct in determining that Harris’s alternative hypothesis was not sufficiently reasonable. Jackson v. Virginia, supra. The record evidence, both direct and circumstantial, is more than sufficient to support the finding beyond a reasonable doubt that the defendant committed aggravated rape in both cases. Jackson v. Virginia, supra. This assignment of error lacks merit. Denial of Motion to Sever In his second assignment of error, Harris complains of the trial court’s denial of his Motion to Sever. Prior to trial, Harris filed two separate motions to sever the charges against him, claiming that trying the two charges in one trial would lead to prejudice. Harris also claimed that the state wanted to try the two cases together to portray him as a serial rapist in front of the jury. Both motions were denied by the trial court. On appeal, Harris argues that the state tried the two cases together to bolster each case, which might not have been strong in their own right. He contends that judicial economy was minimal because each case involved | ¡¡different witnesses, and that the prejudice to him was great because of the joinder. We disagree. La.C.Cr.P. art. 493 provides that two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial. The Louisiana Supreme Court, when addressing a defendant’s motion to sever, has held that: Such a motion is addressed to the sound discretion of the trial court and the court’s ruling should not be disturbed on appeal absent a showing of abuse of discretion. State v. Williams, 418 So.2d 562 (La.1982). According to State v. Washington, 386 So.2d 1368 (La.1980), considerations for the trial court in determining whether prejudice may result from joinder include: whether the jury would be confused by the various counts; whether the jury would be able to segregate the various charges and evidence; whether the defendant could be confounded in presenting his various defenses; whether the crimes charged would be used by the jury to infer a criminal disposition and finally, whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile. State v. Celestine, 452 So.2d 676, 680 (La.1984); see also, State v. Mims, 478 So.2d 685 (La.App. 2 Cir.1985). In this case, the record shows that evidence was presented in an orderly fashion. Evidence was presented chronologically and each crime was presented separately. The crimes were not confused in any way. In fact, a 26-point comparison presented by a sex crime expert was helpful in the organization of the 1 gevidence while at the same time demonstrating the similarity of the common scheme of the crimes. Thus, evidence of one offense would have been admissible as evidence of the other offense. Clear instructions to the jury, and the state’s orderly presentation of the evidence eliminated any problems arising out of the different crimes charged. The two counts were properly tried in one trial, and the trial court did not abuse its vast discretion in refusing to grant Harris’s motion to sever. This assignment of error lacks merit. Denial of Defendant’s Challenge for Cause Harris’s next assignment of error concerns the trial court’s failure to dismiss juror Nugent for cause. During voir dire, Nugent was challenged because of his friendship with one of the police officers who testified at trial regarding the investigation. Harris contends, for the first time on this appeal, that Nugent also indicated that he would not properly require the state to prove guilt beyond a reasonable doubt. Harris used all twelve of his peremptory challenges, including one to exclude Nugent, and therefore argues that the trial court committed reversible error in refusing to grant his challenge for cause. In order for a defendant to prove reversible error warranting reversal of both his conviction and sentence, he need only show the following: (1) the erroneous denial of a challenge for cause; and (2) use of all his peremptory challenges. State v. Hart, 96-0697 (La.3/7/97), 691 So.2d 651, and cases cited therein. La.C.Cr.P. art. 797 provides in pertinent part: The state or the defendant may challenge a juror for cause on the ground that: (2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the Imdefendant shall not of itself-be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence; (3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict; (4) The juror will not accept the law as given to him by the court. This court has held that a trial court is vested with broad discretion in ruling on challenges for cause, and its ruling will be reversed only when a review of the entire voir dire reveals that the court abused its discretion. State v. Ellis, 28,-282 (La.App.2d Cir.6/26/96), 677 So.2d 617, writ denied, 96-1991 (La.2/21/97), 688 So.2d 521, citing State v. Cross, 93-1189 (La.6/30/95), 658 So.2d 683. A refusal by a trial judge to excuse a prospective juror on the ground that he is not impartial is not an abuse of discretion where, after further inquiry or instruction (frequently called “rehabilitation”), the potential juror has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. State v. Robert son, 92-2660 (La.1/14/94), 630 So.2d 1278; State v. Cross, supra, State v. Ellis, supra. As Chief Justice Calogero stated in State v. Lee, 559 So.2d 1310 (La.1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991): When a juror expresses a predisposition as to the outcome of a trial [or in this case, as to a particular sentence], a challenge for cause should be granted. Yet, if after subsequent questioning the juror exhibits the ability to disregard previous views and make a decision based on the evidence presented at trial, the challenge is properly denied. WHen assessing whether a challenge for cause should be granted, the trial judge must look at the juror’s responses during her entire testimony, not just “correct”, isolated answers, or, for that matter, “incorrect”, isolated answers. (Citations omitted) The trial judge must grant a cause challenge “even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be ^reasonably implied.” State v. Jones, 474 So.2d 919 (La.1985), cert. denied, 501 U.S. 1267, 112 S.Ct. 8, 115 L.Ed.2d 1093, (1991). The mere fact that a prospective juror is somehow related to a law enforcement officer is not sufficient to grant a challenge for cause. Such should be granted only if that relationship influences the juror in his ability to make a decision in the case. State v. Lee, supra. The issue of Nugent’s relationship with Officer Gray was reviewed with Nu-gent by the prosecutor during voir dire, as follows: Q. And how long have you known Mike? A. Probably three (3) or four (4) years. Q. Is there anything in your relationship with Mike Gray or due to the fact that you know Mike Gray would you give his testimony more credence or credibility than you would any other witness? A. No. Q. What is your relation with him? A. We play golf together. My brother-in-law use to work with him as a detective and that’s how I know him. Q. Alright. Did your brother-in-law ever come home and talk to you about his work? A. No. Q. Is the fact that you had a brother-in-law that was in law enforcement would that affect your ability to make a decision? A. No. On questioning by defense counsel, Nu-gent further elaborated on his relationship with Officer Gray: Q. Mr. Nugent, let me ask you a little bit about your relationship with Detective Gray. You indicated that you play golf with him, is that correct? A. Yes, we play golf and cards every Tuesday night. Q. Who plays cards with you besides him on Tuesday? A. It’s a group of us out there at Pine Hills. We play gin and cops are there, Brent Chappell and Officer Pat Kelly he’s there. Q. How long have y’all been doing this? A. We do it every year in the winter months. Q. And for how long? A. At least three (3) years. In these responses, despite his social relationship with Officer Gray, Nugent indicated that he would not be influenced by the relationship, or credit Officer Gray’s | ^testimony improperly. In denying the challenge for cause, the trial court expressly noted Nugent’s response concerning his ability to remain unbiased. In State v. Allen, 95-1754 (La.9/5/96), 682 So.2d 713, a juror was challenged for cause, because he and the murder victim knew each other for two years and drank beer together at a local club. Additionally, the juror spoke with a prosecution witness prior to trial about the murder. Nevertheless, the court found that the juror’s relationships with both the victim and the witness were not extensive and, as revealed in voir dire, would not in any way influence his verdict. From our review of La.C.Cr.P. art. 797(3), we note that the relationships specifically identified in the article are those between the juror and “the defendant, the person injured by the offense, the district attorney, or defense counsel.” While a close friendship between a juror and a witness might allow the juror to be challenged for cause for lack of impartiality, the code article does not specifically require that the relationship be closely scrutinized. Therefore, in this case, while the trial court expressed concern about the friendship between juror Nugent and Officer Gray, the court could determine upon the voir dire questioning that Nugent would remain impartial in his consideration of the case. Harris next complains about Nugent’s alleged misunderstanding of the state’s burden of proof. When questioned by defense counsel about the state’s burden of proof, Nugent responded: Q. Okay, why don’t you pass it down to Mr. Nugent? Mr. Nugent, what does the term beyond a reasonable doubt mean to you? A. There’s no doubt in my mind that he has (inaudible) guilty. Q. Okay, And could you convict if all you had was testimony and nothing else could you convict on that? A. No. Q. What does it take if someone takes the stand and asks you to believe something, ask you to believe what they’re telling you how do you evaluate that? How do you evaluate their credibility? A. By how they’re answering the questions .... * * * * 113Q. Okay .... the Court will instruct that even if you believe someone is likely, probably to be guilty unless it’s beyond a reasonable doubt you must acquit what do you think about that? A. I’d have to agree with it. Q. Well, you hesitated a little bit there. A. Well, I was just thinking about the question. Q. Okay. Well, it’s a serious question and it doesn’t get anymore serious but it calls on you to at least the possibility of setting someone free who you believe likely is guilty. A. Right. Q. Now, you-you know, is that really, really something that you can do? A. I don’t know. I doubt it. I mean if I feel that he’s guilty it would be kind of hard for me to say that he’s not guilty, you know, acquit him. Q. Even if it’s beyond a reasonable-not been proven beyond a reasonable doubt? A. Right. Despite the fact that Nugent’s mixed responses in this line of questioning can be viewed as “incorrect,” the defense never presented a specific objection regarding Nugent’s inability to hold the state to its burden of proof. Later, when the trial court was questioning Nugent with respect to his relationship with Officer Gray, the court by its own initiative chose to further question Nugent about the state’s burden of proof because of Nugent’s prior answers as quoted above. We also note that earlier during voir dire, Nugent reported to the trial court an incident that occurred outside the courtroom, in which Nugent meticulously followed the court’s instruction and avoided overhearing a conversation wherein the details of the present case may have been discussed. Nugent reported the incident to the court, was examined concerning the incident, and found to be uninfluenced by the incident because of his evasive actions. The trial court, therefore, had considerable opportunity in Nugent’s entire examination to determine his ability to follow the instructions of the court, including the instruction concerning the state’s burden of proof. The trial court has the right pursuant to La.C.Cr.P. art. 787 to chai- lenge a potential juror, ex propio motu. State v. Myles, 262 La. 633, 264 So.2d 589 (1972). Nevertheless, defense counsel, not the trial judge, has the duty of challenging 114for cause any member of the jury venire who displays a ground for cause under La.C.Cr.P. art. 797. State v. Woods, 444 So.2d 1332 (La.App. 2d Cir.1984). Furthermore, La.C.Cr.P. art. 800 states in pertinent part: A. A defendant may not assign as error a ruling refusing to sustain a challenge for cause made by him, unless an objection thereto is made at the time of the ruling. The nature of the objection and grounds therefor shall be stated at the time of the objection. (Emphasis ours) Here, notwithstanding the fact that the trial court noticed Nugent’s statements during voir dire regarding his ability to apply the appropriate burden of proof, Harris was still required to state the nature and grounds of his objection to preserve the issue for our review. La.C.Cr.P. art. 800; see also, State v. Fairley, 25,951 (La.App.2d Cir.5/4/94), 645 So.2d 213, 219, writ denied, 94-1940 (La.11/11/94), 645 So.2d 1152, and writ denied, 94-2909 (La.3/24/95), 651 So.2d 287. The record clearly shows that Harris’s only stated objection to the trial court’s denial of his challenge for cause of juror Nugent pertained to the social relationship between Nugent and Officer Gray. At no time did defense counsel state as a ground for objection Nugent’s alleged failure to apply the law regarding the state’s burden of proof, and the court in any event could properly satisfy itself regarding juror Nu-gent’s ability to apply the law and serve. This assignment of error has no merit. Physician^-Patient Privilege During the trial, Harris objected to the testimony of Dr. Lisa Walton as privileged. Dr. Walton, a physician, examined Harris during his incarceration. Her first two examinations are the subject of this assignment of error in which Harris claims a violation of the physician-patient privilege under La. C.E. art. 510. In a standard health exam, Dr. Walton first examined Harris upon his entry into the correctional facility as an inmate. Dr. Walton testified that at the conclusion of her exam, Harris asked a few questions that did not relate to him personally. First, he 11fiwanted to know whether a physician could tell whether a female had intercourse within the previous two weeks, and whether a physician could tell whether a female had been raped or had oral sex. Harris asked very detailed questions about the entire process of evidence collection from both the victim and the perpetrator. Dr. Walton explained how a rape kit was performed, including the fact that pubic hair of the perpetrator would be collected, and that evidence would be collected fro'm the victim’s pubic area which might include the perpetrator’s pubic hair, saliva or skin cells. Dr. Walton made a report regarding this examination, which did not note anything unusual about Harris’s body hair. Dr. Walton reported that her next examination of Harris was pursuant to a “sick call request” when Harris complained of a groin problem. Dr. Walton performed a thorough genital examination, and noted that Harris’s pubic hair had been completely shaved since the last exam. La. C.E. art. 510, effective in 1993, governs the physician-patient privilege and provides in pertinent part: C. (1) General rule of privilege in criminal proceedings. In a criminal proceeding, a patient has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication made for the purpose of advice, diagnosis or treatment of his health condition between or among himself, his representative, and his physician or psychotherapist, and their representatives. (2) Exceptions. There is no privilege under this Article in a criminal case as to a communication: (a) When the communication is relevant to an issue of the health condition of the accused in any proceeding in which the accused relies upon the condition as an element of his defense. (b) When the communication was intended to assist the patient or another person to commit or plan to commit what the patient knew or reasonably should have known to be a crime or fraud. The article defines “confidential communication” as including “any information, substance, or tangible object, obtained incidental to the communication process and | many opinion formed as a result of the consultation, examination, or interview and also includes medical and hospital records made by health care providers and their representatives.” La. C.E. art. 510(A)(8)(b). Comment (a) to Article 510 states that the article is, to a large extent, a codification of pre-existing Louisiana law. From our examination of the jurisprudence, particularly State v. Berry, 324 So.2d 822 (La.1975), cert. denied, 425 U.S. 954, 96 S.Ct. 1731, 48 L.Ed.2d 198 (1976), the privilege was not recognized when the medical examination was a mandatory step in the incarceration process. This ruling would place Dr. Walton’s first examination of Harris outside of the privilege. On the other hand, when the patient consulted the physician for treatment or for diagnosis looking toward treatment and the communication was made in confidence, the privilege would apply. State v. Carter, 383 So.2d 357 (La.1980). These rulings appear to remain applicable under Article 510(C) which applies to confidential communications for advice, diagnosis and treatment; therefore, Dr. Walton’s second examination of Harris for his “sick call request” involves a privileged situation. Nevertheless, we pretermitted any detailed review of the application of the privilege under Article 510 due to the marginal relevance of Dr. Walton’s testimony regarding the defendant’s guilt. As shown by our sufficiency of evidence review, the record shows overwhelming evidence of Harris’s guilt on both aggravated rapes, even without mention of Dr. Walton’s testimony. Thus, we hold that any error from the allowance of Dr. Walton’s testimony regarding her observations during Harris’s second examination was harmless error beyond a reasonable doubt. La. C.Cr.P. art. 921. | ^Denial of Recess During Trial Harris’s next complaint stems from the trial court’s denial of his request for time to find an absent witness at the start of his case-in-chief. The record reveals that during the presentation of the state’s case, defense counsel mentioned that he subpoenaed Samantha Works (“Works”) as a witness prior to trial, but that as of the time of trial, she had not been served. Although defense counsel contended that he expected Works to testify that she was present during an alleged drug deal between Harris and LC, he admitted at trial that he had not yet interviewed Works and was unaware of her whereabouts. Harris’s counsel asked the state’s attorney for any information as to Works’s whereabouts. The state conjectured that Works was located in Shreveport, but did not know more specific information. After the state rested its case, the defense moved for a recess for time to find the absent witness. Defense counsel alleged that an investigator had leads as to Works’s whereabouts. In denying the motion for recess, the trial court was emphatic that it could not recess or continue a jury trial when the defendant could not state a period of time within which the witness would appear. A motion for recess is evaluated by the same standards as a motion for a continuance. To be entitled to a recess to secure the presence of a witness, the defendant must establish that (1) the absent witness is expected to testify to material facts so that the presence of the witness at trial is necessary; (2) the witness will probably be available at the time to which the trial is deferred; and (3) due diligence was used in an effort to procure attend- anee of the witness. La.C.Cr.P. art. 709; State v. Wille, 559 So.2d 1321 (La.1990), appeal after remand, 595 So.2d 1149 (La.1992), certiorari denied, 506 U.S. 880, 113 S.Ct. 231, 121 L.Ed.2d 167 (1992). The decision on a motion for a recess lies within the discretion of the trial court and will not be overturned absent abuse of that discretion. State v. Wille, supra; State v. George, 26,867 (La.App. 2 Cir. 4/5/95), 652 So.2d 1382, writ denied, 95-1151 (La.9/29/95), 660 So.2d 855. It is clear from the record that at the time the recess was requested, Harris had no knowledge of the content and materiality of Works’s testimony, because she had not been interviewed prior to trial. Defendant therefore failed to prove that the presence of the witness was necessary at trial. The record also clearly shows that Harris could not demonstrate that Works would be available at all, much less that she would probably be available at a set time to which the trial would be deferred. The defendant could only assert that an investigator had “some leads” on Works’s whereabouts and was trying to locate her. Lastly, it is obvious that Harris did not use due diligence in procuring Works’s attendance. Defendant issued the subpoena pri- or to trial and declared that -he was ready for trial. However, he waited until the trial was well under way to attempt to procure the absent witness, and even had to ask the state for information as to the witness’s whereabouts. Thus, the trial court did not abuse its vast discretion in denying Harris’s motion for recess. This assignment of error is without merit. Motion for New Trial/Post Judgment Verdict of Acquittal After the jury found Harris guilty on both counts .of aggravated rape, he filed a motion for new trial and post verdict judgment of acquittal. Both were denied. In denying Harris’s motion for post verdict judgment of acquittal, the trial court stated that it agreed wholeheartedly with the jury’s guilty verdicts and found the evidence of guilt to not only be sufficient, but overwhelming. In denying the motion for new trial, the trial court found no injustice to the defendant, and in fact found that justice had been well served by the jury’s verdict. Harris now argues that based upon La. C.Cr.P. arts. 821 and 851, he should have been granted a post-verdict judgment of acquittal or a new trial, because an 11flinjustice had been done to him. Under this assignment of error, Harris does nothing more than present the above-cited articles. Based upon our ruling above regarding the sufficiency of the evidence and the lack of any showing by defendant of grounds in support of his motion for new trial, the trial court correctly denied both motions by defendant. The assignment of error has no merit. We have reviewed the record for error patent but found none. Conclusion For the foregoing reasons, Harris’s convictions and sentences are affirmed. AFFIRMED. STEWART, J., concurs in the result only. BROWN, J., concurs. We should simply defer to the jury’s factual findings. . La. R.S. 15:438. Circumstantial evidence The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. . La. R.S. 14:41 defines rape as the act of anal or vaginal sexual intercourse with a male or female person committed without the person's lawful consent. Emission is not neces-saiy and any sexual penetration, vaginal or anal, however slight, is sufficient to complete the crime. . Officer Jay Via, a detective with the Ouachi-ta Parish Sheriffs Department, was qualified as an expert in the field of sex crime investigation. In the course of his investigation and analysis of the two rapes, he prepared a list of over twenty characteristics that were common to the two rapes. Some, but not all, of the similarities include: (1) Harris talked to both victims, calling each of them by their first name, telling them that he had worked with them, and that he wanted to make them "feel good;” (2) he blindfolded both victims, and threatened each woman with a gun; (3) he told them that if they did not look at him, he would not hurt them; and (4) both victims were white females who drove small red cars and purchased gas at the same Citgo station.

In re: Bruce Aucoin, applying for writs of review and for a stay order. Granted. (See order). The petition of the relator in the above entitled and numbered case having been duly considered, It is ordered that a writ of certiorari issue herein, directing the Honorable Wayne P. Bourg, Judge of the City Court of Morgan City, to transmit to the Supreme Court of Louisiana, on or before the 23rd day of April, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained. It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show tause, in this court, on the 25th day of June, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.

In re Euggino, Peter et al.; Long, Nancy K.; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 439,718; to the Court of Appeal, First Circuit, No. 98 CA 2409 Denied. JOHNSON, VICTORY, and TRAYLOR, JJ., would grant the writ. KNOLL, J., no on panel.

In re E.D. Bullard Co.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 95-199; to the Court of Appeal, Fourth Circuit, No(s). 00-C-0037, 00-C-0068. Denied. TRAYLOR, J., would grant the writ. LEMMON, J., not on panel.

In re Seal, Sherry Dickerson et ah; Seal, Sherry; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. C, Nos. 96-12251, 96-12252; to the Court of Appeal, First Circuit, No. 99 CW 2914. Granted. Judgment of the court of appeal is reversed. Judgment of the trial court denying defendants’ motion for summary judgment is reinstated, for the reason assigned by Judge Weimer in his opinion dissenting from the denial of rehearing. Case remanded to the trial court for further proceedings. KNOLL, J., not on panel; LEMMON, J., would grant and docket for oral argument.

In re Guillory Telly; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court, Div. B, No. 93-1226B. Denied. Moot. TRAYLOR, J., not on panel.

In re Lexington Insurance Company;— Defendant; Applying for Writ of Certiora-ri and/or Review, Parish of Orleans, Civil District Court, Div. G, No. 83-6638; to the Court of Appeal, Fourth Circuit, No. 98-CA-1762. Denied. LEMMON, J., would grant the writ. VICTORY, J., not on panel.

In re Green, Milton; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. B, Nos. 68166, 68167 Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189. JOHNSON, J., not on panel.

In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. H, No. 15668-95; to the Court of Appeal, Third Circuit, No. 99-01998. Granted. Remanded to the Court of Appeal for briefing, argument and opinion. JOHNSON, J., not on panel.

In re Lyons, Tyrone; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. C, No. 89,449; to the Court of Appeal, Second Circuit, No. 32,-673-KA. Denied. KNOLL, J., not on panel.

In re: John G. McMullin applying for writs of certiorari, prohibition, mandamus and stay order. Application denied. The showing made does not warrant the exercise of our jurisdiction.

SMITH, Judge. This is a suit originally filed by Oliver Lee Brooks against Carey Jones for possession of certain property. Defendant reconvened converting the issue to establishment of the boundary. The matter was previously before this court in 1973 (Brooks v. Jones, 286 So.2d 368) when it was remanded for further proceedings because the court-appointed surveyor had not complied with the law and therefore his plat of survey and proces verbal were not admissible. Upon remand the trial court appointed a new surveyor who made his survey in compliance with law. The trial court was of the opinion that the surveyor appointed by the court con ducted his survey in full compliance with law, and his findings were substantially the same as those of the first court-appointed surveyor and correctly shows the boundary between the parties and granted judgment accordingly. From this judgment both plaintiff and defendant appealed. We affirm. Appellants contend that the court-appointed survey is not well-founded because he did not use well-established principles in making his survey. Each appellant contends that his own surveyor's opinion should be made the basis of judgment. In an action of boundary the law requires proof of the boundary with legal certainty and that burden is divided equally among the contesting parties. Russell v. Producers’ Oil Company, 143 La. 217, 78 So. 473 (1918). In this case defendant Jones produced a survey based on a survey of a nearby subdivision without checking it against established government markers. Plaintiff had two surveys, one by Ramsey and one by Wilkerson & Son. The latter survey apparently coincided with the north line of Section 26 as established by the first court-appointed surveyor. Plaintiff’s other surveyor started his survey from a section corner which he tied to what is known as United Gas corner by using other surveyors’ information. Thus, both parties’ surveyors used prior surveys as starting points, whereas the court-appointed surveyor began from the Government Township marker. There is a presumption of correctness in favor of surveys made pursuant to court order and complying with all the formalities required by law. Anding v. Smith, 189 So. 362 (La.App., 2d Cir. 1939); Harvey v. Havard, 274 So.2d 917 (La.App., 1st Cir. 1973); Porche v. Martin, 177 So.2d 288 (La.App., 1st Cir. 1965). The court finds that the court-appointed surveyor began from a well-established township corner, located established corner markers, located four corners of the section in question and finally established the north-south quarter section boundary line between plaintiff and defendant. The line established by this survey was verified and its location substantiated by credible corroborative evidence upon which the courts can act with assurance of doing substantial justice as between the parties as was said in McMichael v. Williams, 111 So.2d 542 (La.App., 1st Cir. 1959). The line between the property of Jones, described as: “The Western one-third of the South Half of Southeast Quarter of Northeast Quarter (Wi/3 of Sy2 of SE(4 of NE14), Section 26, township 17 North, Range 11 West, Bossier Parish, Louisiana, containing 6.6666 acres, more or less.” and the property of Brooks, described as: “A tract of land located in the Northeast corner of the Southwest Quarter of the Northeast Quarter (SW/4 of NE/4) of Section 26, Township 17 North, Range 11 West, Bossier Parish, Louisiana, more particularly described as follows: From the Northeast corner of the Southwest Quarter of the Northeast Quarter (SW/4 of NE/4) of Section 26, run thence South 585.5 feet; run thence west 250.0 feet; run thence North 585.5 feet; run thence East 250.0 feet to the point of beginning, together with all buildings and improvements situated thereon.” is fixed as established by James D. Mohr by court survey on June 3, 1974 represented by a I1/2" pipe set at the Southwest corner of Jones’ property and running north 660 feet to a 1" pipe set at the Northwest corner of Jones’ property as per plat attached. For the foregoing reasons the judgment of the lower court is affirmed.

LJOHNSON, J. We granted certiorari in this case because of a conflict among the circuits relative to the meaning and effect of La. R.S. 26:81 E and to determine whether the exception in La. R.S. 26:81 E permits the issuance of a liquor license in subdivisions of the state where the electors have voted to prohibit the sale of alcohol by local option election. After considering the language of the statute, the legislature’s purpose in revising the Alcohol Beverage Law (La. R.S. 26: et seq.), and the history of La. R.S. 26:81, we reverse the ruling of the court of appeal and hold that the exception contained in La. R.S. 26:81 E does not apply to those subdivisions of the state that have prohibited the sale of alcohol by referendum vote under La. R.S. 26:581 et seq. FACTS AND PROCEDURAL HISTORY A referendum election was held on December 4, 1976 in Ward 3 of Beauregard Parish and the electors of that Ward voted to prohibit the sale of alcoholic beverages. Cole-Miers Post 3619, Veterans of Foreign Wars of DeRidder, located in Ward 3, applied for state permits in 1997 that would allow the sale of alcoholic beverages of both low and high alcoholic content. The Office of Alcohol and Tobacco Control (“ATC”), formerly the Office of Alcoholic Beverage Control, denied |gthe application in accordance with La. R.S 26:81 B(l), which states in relevant part: “No permit shall be issued [to sell alcoholic beverages] by the Commissioner or by any municipality or parish to authorize any business in any subdivision of the state where the business [of selling alcohol] has been prohibited by referendum vote.” La. R.S. 26:81 B(l). Plaintiff sought judicial review in the 36th Judicial District Court. At trial, the parties submitted the referendum vote of December 1976, wherein the citizens of Beauregard Parish elected to prohibit the sale of alcoholic beverages in the area where the VFW’s premises are located and the defendant’s letter of denial for a state permit to sell both high and low alcoholic content beverages in that area. The district court affirmed the decision of the ATC, denying applications for a Class A general beer and liquor permit because the VFW is located in an area where the sale of alcohol is prohibited. Plaintiff filed an appeal in the Third Circuit Court of Appeal. The majority reversed the trial court concluding that the exception set forth in La. R.S. 26:81 E permitted the issuance of a Class A general beer and liquor permit despite the referendum vote to prohibit the sale of alcoholic beverages because plaintiff was a fraternal organization within the meaning of La. R.S. 26:81 E. The Third Circuit found that subsection E applied to all of the preceding subsections, A through D, reasoning that had the legislature intended the exception to apply only to certain subsections, it would have placed the exception within the subsections. Instead, the court found that E is in a separate subsection following A through D, thus, it applied to all preceding subsections. Cole-Miers Post 3619 V.F.W. of Deridder v. State of Louisiana, et al., 98-1879 (La.App. 3 Cir.7/14/99), 747 So.2d 598. .We granted certiorari in this matter to determine whether the exception in La. R.S. 26:81 E permits the issuance of a liquor license in subdivisions of the state where the electors have voted to prohibit the sale of alcohol by local option election. Cole-Miers Post 3619 V.F.W. of Deridder v. State of Louisiana, et al. 99-2215 (La.9/24/99); 747 So.2d 1109. LAW Under the general rules of statutory construction, courts begin their review with the premise that legislation is the solemn expression of legislative will and, therefore, the interpretation of the law involves, primarily, the search for the legislature’s intent. La. C.C. art. 2; Falgout v. Dealers Truck Equipment Co., 98-3150 p. 1 (La.10/19/99); 748 So.2d 399. Thus, when a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9. When the statutory language is susceptible to more than one meaning, however, it must be interpreted as having the meaning that best conforms to the purpose of the law, and the meaning of ambiguous words must be sought by examining the context in which they occur and the text of the law as a whole. La. C.C. arts. 10 and 12; Touchard v. Williams, 617 So.2d 885, 888 (La.1993). Thus, statutory interpretation is a matter of law and rests squarely in the hands of the judiciary. In re: the Matter of Louisiana Health Service and Indemnity Company 98-3034 p. 1 (La.10/19/99); 749 So.2d 610. We, therefore, begin by looking to the language of the statute itself. La. R.S. 26:81 states: A. No permit shall be granted under this Chapter in contravention of any municipal or parish ordinances adopted pursuant to the zoning laws of the state. B. (1) No permit shall be issued by the commissioner or by any municipality or parish to authorize any business in any subdivision of the state where the business has been prohibited by referendum vote. * * * C. When prohibited by municipal or parish ordinance, no permit shall be granted for any premises situated within three hundred feet or less, as fixed by the ordinance, of a public playground or of a building used exclusively as a church or synagogue, public library, or school. D. Outside of municipalities and unincorporated areas which are not [ 4divided into subdivisions with streets, blocks, or sidewalks, parish ordinances may extend the prohibition to a distance of five hundred feet of the church, synagogue, public library, school, or playground. E. The prohibitions in this Section do not apply to any premises which are maintained as a bona fide hotel, or fraternal organization, nor to any premises which have been licensed to deal in alcoholic beverages for a period of one year or longer prior to the adoption of the ordinance. Plaintiff argues that La. R.S. 26:81 E creates an exception to the general prohibition in 26:81 B(l) and allows for issuance of alcohol licenses to fraternal organizations within a dry area. However, reading subsection E as an exception to all of the preceding sections, A through D, would lead to absurd consequences. If applied strictly, the exception would allow a business to sell beverages of high alcohol content in areas voted dry while those same businesses would be strictly prohibited to sell beverages of low alcohol content under the complete ban of La. R.S. 26:281. It would be illogical to allow the sale of beverages of high alcohol content while strictly banning beverages of low alcohol content in a locality trying to restrict the sale of alcohol. These absurd results make this court look further into the real intentions of the legislature when adopting the exception of La. R.S. 26:81 E. LEGISLATIVE HISTORY AND DISCUSSION The Third Circuit, in disposing of this case, followed its earlier ruling in Sabine Parish Police v. Office of Alcoholic Beverage Control, et al. where they allowed an alcohol license to be ^issued in a Ward that had been voted dry. 94-919 (La.App. 3 Cir. 8/25/94); 643 So.2d 187. In Sabine, the Sabine River Authority applied for a Class A permit to sell beverages of high and low alcoholic content at a proposed Conference and Recreation Facility at Toledo Bend Lake. However the citizens in Sabine Parish, prior to the application, had voted to prohibit the sale of alcohol in Ward 3 of Sabine Parish by referendum vote and adoption of a local ordinance. The plaintiff argued that the prohibitions of La. R.S. 26:81 A, B, C and D did not apply because, as a bona fide hotel, 26:81 E permitted a license. The Sabine court concluded that the prohibitions set forth in La. R.S. 26:81 A, B, C and D did not apply to hotels or fraternal organizations, whether licensed before or after a referendum vote, and did not apply to premises which were licensed more than one year prior to adoption of an ordinance. This decision, therefore, allowed exceptions to the blanket ban of 26:81 B(l). * * Si However, in O’Neal v. Jackson Parish Police Jury, the Second Circuit determined that La. R.S. 26:81 E did not provide exceptions to 26:81 B(l). 27,452 (La. App. 2 Cir. 6/21/95); 658 So.2d 240. In that case, a referendum election was held in October 1994, and the citizens of Jackson Parish voted to prohibit the sale of alcohol in that particular Ward of Jackson Parish. Plaintiffs’ corporation, Green Street Enterprises, Inc., had been licensed to sell alcohol in Jackson Parish since 1983. When he applied for a license renewal, plaintiff relied on the grandfather clause provisions of 26:81 E, as he was licensed several years prior to the referendum vote. The O’Neal court concluded that the absolute prohibition set forth in 26:81 B(l) did not have exceptions, and therefore, applied to hotels, fraternal organizations, and premises licensed for more than one year prior to adoption of an ordinance. In O’Neal v. Jackson Parish Police Jury, the Second Circuit engaged in a review of legislative history and the evolution of La. R.S. 26:81 as well as its antecedents when it determined the applicability of 26:81 E to sections A through D. See O’Neal v. Jackson Parish Police Jury, 27,- 452 (La.App. 2 Cir. 6/21/95); 658 So.2d 240. We find the analysis proper and a guide to our analysis in the present case. Blanket bans on the sale of alcohol via referendum vote can be found as early as 1902 in the state of Louisiana. Local governing authorities were prohibited from licensing alcohol sales in areas where the voters elected to prohibit the sale of intoxicating liquors. See 1902 La. Acts, No. 221. LThe election was controlling and there were no exceptions to this broad ban. This same prohibition was extended to the State by Acts 1934, No. 15 after the repeal of the 18th Amendment to the U.S. Constitution. O’Neal, 27,452, p. 7 (La.App. 2 Cir. 6/21/95); 658 So.2d at 244. Again, no exceptions were present. This unqualified prohibition was reenacted in Act 360 of Acts 1948. Section 19 contained a blanket prohibition against the issuance of liquor licenses by the Board or any municipality or parish in areas where the sale was prohibited by referendum vote. Section 54 permitted local governing authorities to enact ordinances to prohibit alcohol sales within certain distances of churches, synagogues, libraries, schools, and the like. It also contained an exception to these ordinances for those premises that were a “bona fide hotel, railway car, fraternal organization, or a' premise licensed to sell alcohol one year prior to the adoption of the ordinance.” This exception applied only in those areas where alcohol sales were, otherwise, generally permitted. When the Revised Statutes were adopted in 1950, sections 19 and 54 were combined into section 80. La. R.S. 26:80 was divided into three subsections, which read, in relevant part: A. No permit shall be granted under this Chapter in contravention of any municipal or parish ordinances adopted pursuant to the zoning laws of the state. B. No permit shall be issued by the board or by any municipality or parish to authorize any business in any subdivision of the state where that business has been prohibited by referendum vote. C.Governing authorities of parishes and municipalities may enact ordinances to prohibit the conduct of alcoholic beverage businesses within a certain distance of a parish or municipal public playground or of a building used exclusively as a regular church or synagogue, public library, or school. Except a school for business education conducted as a business college. No state or local permit shall be issued in contravention of such ordinance. In municipalities the prohibitions may not extend more than three hundred feet from the church, synagogue, library, school, or playground, or school to the nearest point of the premises licensed. Outside of municipalities, parish ordinances may extend the prohibition to a distance of five hundred feet of the church, synagogue, library, school, or playground ... The prohibition in this Sub-Section does not apply to any premises which are maintained as a bona fide hotel, railway car, or fraternal organization, nor to any premises which has been licensed to deal in alcoholic beverages for a period of one year or longer prior to the adoption of the ordinance. (Emphasis added). We can see from the Acts of 1950, in those areas where alcohol was prohibited by referendum vote, 17there was an absolute ban on granting licenses in that area. Subsection C, however, contained an exception to ordinances promulgated by parishes and municipalities by authority of that same subsection C. The Acts of 1987, No. 696, recodified the Acts of 1950 and essentially reenacted the 1950 section 80 as the current section 81. The current section 81 contains five subsections, however, not three. Subsection A and B(l) have the same wording as their antecedents. Notably, subsection C is broken into three smaller sections, C, D, and E which encompasses the same language as their progeny, 26:80 C. When reviewing the stages of subsection E on the House floor, the original bill shows: E. The prohibitions in this Subsection 4oes Section do not apply to any premises which are maintained as a bona fide hotel, railway-oar- restaurant holding an “R” permit, or fraternal organization, nor to any premises which have been licensed to deal in alcoholic beverages for a period of one year or longer prior to the adoption of the ordinance. This language was taken directly from the 1950 statute. But, in the final bill, section E became: E. The prohibition in this Section do not apply to any premises which are maintained as a bona fide hotel, or fraternal organization, nor to any premises which have been licensed to deal in alcoholic beverages for a period of one year or longer prior to the adoption of the ordinance. On authority of La. R.S. 24:253, which allows the Louisiana State Law Institute to correct “manifest typographical and grammatical errors” in legislative acts, the word “prohibitions” was substituted for “prohibition.” O’Neal, 658 So.2d. at 245. This progression indicates that the Legislature was simply cleaning up an antiquated bill. The language of La. R.S. 26:81 E is taken from the Acts of 1950, 26:80 C, where one exception applies to two ordinance prohibitions: those ordinance prohibitions inside municipalities and those ordinance prohibitions outside municipalities. These prohibitions were separated into sections C and D, and the exception was further separated into its own section, section E. Clearly, this was for easier reading of the law because there is no indication that the legislature sought to add new exceptions or substantively change the previous subsections. In fact, the minutes of the House Judiciary Committee show that Mr. George F. Brown, who presented the bill, stated twice that the bill was “basically a recodification and a cleanup of some extraneous language” and emphasized that [ «“all the enforcement features [were] intact.” Acts 1987, No. 696, Regular Sess., Minutes, 1987. While the Minutes do not form part of the law, they preserve the debates on proposed legislation within the House and, in this case, serve to elucidate the understanding and intent of the legislators. See Falgout, 98-3150 p. 10 n. 7 (citing Conerly v. State, 97-0871 p. 8 (La.1998), 714 So.2d 709, 714). Thus, the history of the statute shows an attempt by the legislature to maintain the original blanket ban. Moreover, we are convinced that 26:81 E is not intended as an exception to 26:81 B(l) in light of the entire statutory scheme of Title 26. Judge Pickett, in her dissent, points out that if 26:81 E is construed as an exception to referendum votes, the statute pertaining to beverages of high alcoholic content (La. R. S.26:81) contains a blanket exception to referendum votes, while the statute pertaining to beverages of low alcoholic content (La. R.S. 26:281) does not. This difference would produce an absurd result. For example, “had the VFW sought a permit for the sole purpose of selling beer and wine coolers they could not prevail. The [Third Circuit’s] interpretation of 26:81 E, however, allows them to sell whiskey.” Cole-Miers Post 3619 V.F.W. of Deridder v. State of Louisiana, et al., 98-1879 p. 4 (La.App. 3 Cir.7/14/99), 747 So.2d 598 (Pickett, J., dissenting). We do not think, given the history of the statute, this was an intended result of the legislature. Further, we noté that La. R.S. 26:81 E contains an exception to an “ordinance,” not to a “referendum.” All of the preceding statutes contain only this exception to ordinances both inside and outside municipalities. The history of the statute shows that the legislature intended this exception to apply to ordinance prohibitions relating to distances from schools, churches, etc. and not to referendum vote prohibitions. To conclude otherwise would significantly diminish the effectiveness of local option elections. See generally La. R.S. 26:582. We believe the district court and the O’Neal court were correct in their refusal to allow such an interpretation in light of the longstanding deference accord-; ed voters. O’Neal, 658 So.2d at 245. La. R.S. 26:582, which permits voters to decide whether the sale of alcohol should be allowed, would be rendered meaningless if we allow this exception to circumvent the people’s will. Surely, it was not the legislature’s intent to circumvent the voters’ decision and the history of the statute itself does not indicate otherwise. Accordingly, we hold that La. R.S. 26:81 E does not provide an exception to entities located 19in those subdivisions of the state that have prohibited the sale of alcohol by referendum vote. Plaintiff is located in Ward 3 of Beauregard Parish, which has voted to prohibit the sale of alcohol. Under La.R.S. 26:81 B(l), alcohol permits are strictly prohibited and the ATC is prohibited from issuing a state permit for the sale of alcohol to VFW. Because the exception in 26:81 E does not apply to subdivisions of the state voted dry, we do not reach the question of whether the VFW is a fraternal organization within the meaning of La. R.S. 26:81 E. DECREE For the foregoing reasons, the decision of the Court of Appeal is reversed and the decision of the trial court is reinstated. We find that the exception contained in La. R.S. 26:81 E does not apply to those subdivisions of the state that have prohibited the sale of alcohol by referendum vote under La. R.S. 26:582. REVERSED. LEMMON, J., dissents and assigns reasons. KIMBALL, J., dissents for reasons assigned by LEMMON, J. CALOGERO, C.J., subscribes to the opinion and assigns additional reasons. KNOLL, J., not on panel. Rule IV, Part 2, § 3. . La. R.S. 26:582 gives authority to subdivisions of the state to hold a referendum election in order to "to determine whether or not the business of selling alcoholic beverages shall be conducted and licensed.” The election can be held no more than once every two years. . La. R.S. 26:71.1 defines Class A permits. It states in relevant part: (1) Class A-General: (a) A Class A-General retail permit shall be issued only to a retail outlet where beverage alcohol is sold on the premises for consumption on the premises by paying customers. Such an establishment must be equipped with a permanent wet bar equipped with a non-movable sink and a backbar or similar equipment for public display and to inform the public of brands and flavors offered for sale. (b) A Class A-General retail establishment shall be staffed by a bartender whose primary duty is to open and/or prepare beverage alcohol products for consumption on the premises by paying customers, or prepared with an appropriate lid or cover on the container for take out service. Such an establishment must meet all state and local health and zoning requirements as set forth by the state and by parishes and municipalities where a Class A-General retail outlet is located. (c) Repealed by Acts 1995, No. 1016, S 2. (d) A Class A-General retail permit shall be issued only to an establishment where .the state law provides that no person under the age of eighteen years is allowed on the premises except as provided in R.S. 26:90(A)(8)(a). . La. R.S. 26:281 regulates permits to sell beverages of low alcoholic content. Section B contains a blanket prohibition against the issuance of. permits in those subdivisions of the state that have voted themselves dry. There is no exception to this ban. La. R.S. 26:281 states in relevant part: A. No permit shall be granted under this Chapter in contravention of any municipal ordinance adopted pursuant to the zoning laws of the state. B. No permit shall be issued by the commissioner or local authorities to authorize the conduct of business in any subdivision of the state wherein that business has been prohibited by referendum vote. C.(1) When prohibited by municipal or parish ordinance no permit shall be granted for any premises situated within three hundred feet or less, as fixed by the ordinance, of a public playground or of a building used exclusively as a church or synagogue, public library, or school. (2) The commissioner shall not deny any applicant located outside a municipality a permit based on the distance requirements of this Subsection, if the parish governing authority and the organization that operates the public playground or owns the building used exclusively as a church or synagogue, public library, or school waive opposition to the applicant's permit. . Mr. George F: Brown is a member of the Beer Industry League of Louisiana in Baton Rouge, Louisiana. He is listed as a witness in the minutes on June 9, 1987.

REDMANN, Judge. These appeals question whether Louisiana’s public lease law, R.S. 41:1211-1222, applies to leases by the Audubon Park Commission for the City of New Orleans. The Commission was created by La. Acts 1914, No. 191, to control and manage Audubon Park, which is state-owned, City of New Orleans v. Board of Comm’rs. of Port of N. O., La.App. 1962, 148 So.2d 782, writ refused 244 La. 204, 151 So.2d 493. A second question is whether the Commission may use summary proceedings to regain possession of land leased without compliance with the public lease law. We answer yes to both questions. The Appeals Citizen-taxpayers obtained a judgment declaring invalid, for noncompliance with advertisement and public bidding provisions of the public lease law, a lease by the Commission to Novelty Enterprises, Inc. Novelty appealed. The Commission acquiesced in that judgment, and brought a rule to evict Novelty. Refused eviction, the Commission appealed. The Commission also brought a rule to evict J. D. Douglass Concessions, Inc., on the ground that Douglass’s lease was a nullity. Eviction was granted and Douglass appealed. The three appeals have been consolidated. Standing In the first appeal, Novelty questions the plaintiffs’ standing to sue. To show standing in Louisiana a taxpayer need only show an effect upon the public fisc by the government action in question. Stewart v. Stanley, 1941, 199 La. 146, 5 So.2d 531; Roussel v. Noe, La.App. 1973, 274 So.2d 205, writ refused 281 So.2d 743; Bussie v. Long, La.App.1973, 286 So. 2d 689, writ refused 288 So.2d 354. Here the showing is not only that, because not publicly bid, the lease may not provide the highest rental, but also that the lease calls for expenditures by the Commission. The standing of the individual plaintiffs is shown. (We do not consider, because unnecessary to our decision, whether the plaintiff association also has standing.) Public Lease Law Controls Appellants argue that Acts 1958, No. 492, exempts the Commission from the public lease law, and provides authorization to the Commission to enter leases by negotiation rather than by public advertisement and bid. That act vests in the Commission “authority to enter into contracts with private individuals, firms or corporations for the establishment, maintenance and operation of park recreational and entertainment facilities and activities ., and to charge and collect from said contracting parties rental for the use of said park property.” Appellants cite Hebert v. Police Jury of W. Baton Rouge Parish, La.App.1967, 200 So.2d 877, and the authorities it cites, in support of this position. This position, however, is by implication rejected by Arnold v. Board of Levee Comm’rs, La.App.1976, 327 So.2d 495, which discusses in depth the history and purposes of the public lease law, the principle of express exception by other statutes, and the cases appellants rely upon. We do not find any provision in Acts 1958, No. 492, which differentiates this case from Arnold. Authority to “charge and collect . . . rental” does not even imply authority to fix rental other than by public advertisement and bid. Without repeating Arnold’s pertinent discussion and analysis, we point out that the statute appellants cite was enacted subsequent to the public lease law, when any intent to create an exemption from that law had more reason to be express than did Arnold’s statute, enacted long before the public lease law. We hold that the public lease law is applicable. (See also Giles v. New Orleans City Park Improvement Ass’n., La.App. 1975, 306 So.2d 823, writ refused 310 So.2d 841.) Availability of Summary Proceedings In the eviction proceedings, the lessees excepted that the use of summary procedure to evict is not available. (The brief in support clarifies that this is the intent of the exception described as one of “no cause of action.”) C.C.P. 4701 may not be yet applicable. It provides a method of evicting a lessee whose right of occupancy “has ceased”. A definitive judgment declaring a lease null might be interpretable as causing the lessee’s ostensible right to cease; but the declaratory judgment annulling Novelty’s lease was not definitive, and there was no judgment at all as to Douglass. As to Douglass, the rule to evict was a first notification of a theory of nullity of its lease :■ it was a rule to show cause why the lease should not be declared a nullity (and why the lessee should not therefore be evicted). Summary proceeding is available, C.C.P. 2592, in all cases where the law permits and R.S. 13:5035 provides “summary” hearing of suits by the state for “possession of real property”. A summary proceeding may be commenced by rule to show cause, C.C.P. 2593. We therefore conclude that the Commission’s proceeding by rule, even if not technically available under C.C.P. 4701, is authorized under R.S. 13:5035 to obtain possession of immovable property. The exception to the summary procedure was correctly overruled as to Douglass and incorrectly maintained as to Novelty (despite the Commission’s reliance on C.C.P. 4701 alone). Arbitrary Discrimination Finally, it is argued by Douglass that the Commission discriminates arbitrarily by evicting it while allowing other lessees to remain in possession. We find that there are only three lessees with terms beyond one month; of those two are here involved and the third (the Audubon Golf Club) was, at trial time, being approached for an extra-judicial cancellation and settlement of its lease. As to other concessionnaires or lessees, we do not suggest that the public lease law allows unadvertised and unbid leases on a monthly (or shorter) basis any more than on longer terms; but, if, e. g., the balloon-sales concession is subject to the public lease law, the Commission’s effort seems reasonable as a stop-gap to keep the park operating until leases can be granted in compliance with the public lease law. The leases of Novelty and Douglass, on the other hand, need not be allowed to continue on a similar month-to-month basis as a matter of equal protection of the law, La.Const, art. 1, § 3, because these leases (as recently amended) call for removal from present locations to accommodate zoo expansion, and for construction by the Commission of new facilities at new locations. These lessees are therefore in a different position, unable to continue in possession even on the basis of an occupancy terminable at will, and the Commission has not unlawfully discriminated against them. The judgments in Nos. 7247 and 7455 are affirmed. That in No. 7318 is reversed, and the Commission’s rule to evict, as a rule for possession under R.S. 13:5035, is made absolute at Novelty’s cost.

In re: George Fournette applying for Writ of Certiorari and Habeas Corpus. Writ denied. No error of law in the ruling of the trial judge.

In re: William Doyle applying for Writs of Habeas Corpus and/or Remedial Writs. Application denied. This is the same as # 57,609, on which we ruled March 16, 1976.

In re: Hubert Monk, et ux., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Vernon. Application denied. We cannot say the result is incorrect as to this applicant.

In re: Clarence Washington Applying for Supervisory Writ of Certiorari. Writ denied. The trial judge properly denied the directed verdict. There was evidence from which it could conclude guilt.

PETERS, Judge ad hoc. This appeal from a judgment ordering the issuance of letters of tutorship to Jo Ann Choates was consolidated on appeal with number 5380, Choates, et al. v. Choates, Sr., 329 So.2d 219. Because we reversed the award of permanent custody to Jo Ann Choates in number 5380 and remanded that case, we must also reverse the judgment which ordered the issuance of letters of tutorship and remand this suit. The determination of which parent is entitled to the natural tutorship must await a determination of custody. (LSA-C.C. 250.) All costs of this appeal are assessed against Jo Ann Choates. Reversed and remanded.

It CRIGLER, Judge Pro Tempore. The trial court granted summary judgment against plaintiff, John D. Colquitt, rejecting his claim that the Claiborne Parish Sheriffs Office and the Claiborne Parish Sheriff had held him in the parish jail illegally. For the reasons expressed herein, we affirm the trial court’s judgment. Factual Background On April 12, 1998, Colquitt, who was out of prison on parole and under the supervision of the Louisiana Department of Public Safety and Corrections (“DPS”), was arrested by Homer city police officers for carrying a concealed weapon by a felon and for disturbing the peace by appearing intoxicated in public, a violation of La.R.S. 14:103 A(3). He was booked into the Claiborne Parish jail, and DPS then placed a hold on Colquitt for parole violations, specifically, carrying a concealed weapon, drinking, and appearing in public in an intoxicated condition. Within 48 hours, on April 14, he had waived his right to a preliminary hearing on the parole violations and 'pled guilty. At the same time he admitted that “probable cause exists to believe” that he committed a crime. Accordingly, Colquitt’s parole was revoked. On May 3, he subsequently was charged by bill of information with a violation of La. R.S. 14:95.1, possession of a concealed weapon by a convicted felon. On June 2, 1998, in a preliminary examination hearing, the district court found sufficient probable cause to charge Colquitt with a felony and to continue to hold him in custody pending a trial. He ultimately served his sentence and was released on January 26,1999. On April 21, 1999, he filed a petition for damages against the Claiborne Parish Sheriffs Office and the Claiborne Parish Sheriff, alleging that after being arrested by the Homer police, he was held in jail illegally because the arresting officers did not complete a 48-hour affidavit pursuant to La.C.Cr.P. art. 230.2. He also claimed that he told the sheriff that his detention was illegal, but the sheriff | ?did nothing to help him get out of jail. The trial court granted the defendants’ motion for summary judgment and dismissed Colquitt’s claims, finding that his imprisonment was based on proper legal authority as there was probable cause to arrest Colquitt, and his continued custody was legally authorized by the DPS detainer, the parole revocation, and the preliminary examination findings. This appeal followed. Discussion Under La.C.Cr.P. art. 230.2, when a law enforcement officer arrests a person without a warrant, the officer is to promptly complete an affidavit of probable cause and submit it to a magistrate. Persons remaining in custody pursuant to a warrantless arrest are entitled to a determination of probable cause within 48 hours of arrest, and this determination may be made without the presence of the defendant and upon affidavits or other written evidence. If a probable cause determination is not timely made, the arrested person is to be released on his own recognizance. In the instant case, the burden of completing the affidavit fell on the Homer police officers who effected Colquitt’s arrest. These officers were not employees of the Claiborne Parish Sheriffs Office and were not under the control of the Claiborne Parish Sheriff. Thus, any omission in promptly completing an affidavit of probable cause cannot be attributed to either the Claiborne Parish Sheriffs Office or the Claiborne Parish Sheriff. The intent underlying Article 230.2 is to ensure that within 48 hours of a warrant-less arrest, probable cause supporting the arrest existed. In the instant case, within 48 hours of Colquitt’s arrest, he formally admitted his guilt of parole violation charges, his parole was revoked, and DPS placed a detainer on him. Thus, before the time that Colquitt might otherwise have been entitled to be released on his own recognizance under Article 230.2, the defendants had reason |3to continue holding him in custody because of the DPS’s detainer. We also note that the district court conducted a subsequent preliminary examination on the felony charge of possession of a firearm by a convicted felon, and found sufficient probable cause for charging Colquitt with that crime. This case is analogous to Frank v. City of Ville Platte, 98-C-1819 (La.4/13/99), 730 So.2d 887. In that case, the plaintiff, who was arrested for burglary and theft by the city police department, was- not brought before a judge within 72 hours of his arrest as required by La.C.Cr.P. art. 230.1. However, the city maintained that it was not under an obligation to do so because, the DPS had placed a hold on the plaintiff for violation of parole. The Louisiana Supreme Court indicated that the mere fact a person is on parole does not relieve the law enforcement authority arresting a person for an offense unrelated to the parole from bringing the person before a judge within 72 hours. However, the court held that even assuming the city violated Article 230.1, the plaintiff was not damaged. This was because the remedy for violation of Article 230.1 was release of the arrested person from custody, but the plaintiff was not entitled to be released because of the hold placed by the DPS for parole violation. Accordingly, the court concluded the plaintiff was not damaged. Similarly, the same reasoning applies with even greater force in the instant case. Just as the remedy for the alleged violation of Article 230.1 in Frank would have been release of the arrested person from custody, the remedy for the alleged violation of Article 230.2 in the instant case would have been release of Colquitt from custody. However, Colquitt was not entitled to release from custody because of the parole hold placed upon him by the DPS. Accordingly, as was true for the plaintiff in Frank, Colquitt was not damaged by his incarceration. Further, we observe that unlike the plaintiff in Frank, Colquitt was not being held by the same law enforcement authority that arrested him, and within 48 hours of Colquitt’s |4arrest he had formally admitted his guilt to parole violations. Under La.C.C.P. art. 966, when a party shows that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law, summary judgment shall be rendered. In this case, the defendants have successfully shown that there were no genuine issues of material fact, and that judgment against Colquitt was appropriate as a matter of law. Conclusion For the reasons stated above, the judgment of the trial court is affirmed. Costs are assessed to Colquitt in accordance with La.C.C.P. art. 5181 et seq. AFFIRMED.

In re: Scott Hill applying for Writ of Habeas Corpus. Writ denied. The petitioner is not entitled to relief on the ground urged.

STOULIG, Judge. Plaintiff, Aldrich Adams, filed a third party suit against his employer’s executive officers, alleging their negligent conduct resulted in his sustaining a job-connected injury at Avondale Shipyards, Inc. At the time of injury, plaintiff alleged he was operating a crane that was lifting material being used in new ship construction. Defendants pleaded the exceptions of no right or cause of action, which were maintained. Plaintiff has appealed the judgment dismissing his suit. At the trial level it was stipulated that plaintiff was being paid workmen’s compensation benefits under the Longshoremen’s and Harbor Workers’ Compensation Act. In his motion which precipitated the consolidation of this appeal with that pending in the proceeding bearing Docket No. 7222 of this court, entitled "Curtis Poche, Jr., and Velma Poche vs. Avondale Shipyards, Inc.,” plaintiff averred that “the exact same legal issue is presented in both cases, that is, whether the 1972 amendment to the Federal Longshoremen’s and Harbor Workers’ [Compensation] Act precludes a suit for damages against the executive officers and/or fellow employees at Avon-dale Shipyards, Inc.” For the reasons assigned in the Poche case, the judgment appealed from is affirmed at plaintiff’s cost. AFFIRMED.

HAWTHORNE, Justice. This suit was instituted by Arthur Vel-tin and Arthur E. Veltin under the provisions of Act 38 of 1908, to have themselves recognized as the sole and rightful owners of the Southeast of the Southwest *4 of Section 21, Township 6 South, Range 7 East. They allege that neither they nor the defendants, Mrs. Jeannette R. Haas and Mrs. Nathalie Haas Hirsch, are in possession of the property, which is wild, cut-over swamp land, and they pray for the cancellation from the conveyance records of St. Landry Parish of the sheriff’s deed in the proceeding entitled “Howard Cole v. Melville Land Company”, No. 18,306 on the civil docket of the district court, and for cancellation of all subsequent transfers thereunder. In this petition, which was filed on May 21, 1937, they set up their own chain of title, which they trace to a tax deed of date May 28, 1910, and further allege that the defendants are claiming the property in question, predicating their claim on a chain of title emanating from the sheriff’s deed of date January 21, 1910, in the foreclosure proceedings above mentioned, at which foreclosure sale, Howard Cole, one of defendants’ authors in title, became the purchaser of the property involved in this suit. On May 31, 1937, defendants filed a prayer for oyer, which was granted, and thereupon plaintiffs filed certified copies of the instruments setting up their chain of title, as well as a copy of the sheriff’s deed to Howard Cole, one of defendants’ authors in title, dated January 21, 1910. On June 28, 1937, defendants filed an exception of no cause or right of action and a plea of estoppel. The minutes of the court shown in the record do not disclose any ruling by the trial court on this exception and the plea of estoppel. However, the trial judge in his reasons for judgment states that both were overruled. On June 1, 1942, Arthur E. Veltin and Mrs. Anita Veltin Burgin were made parties to said suit as the sole and only heirs of Arthur Veltin, deceased. On February 9, 1943, defendants, Mrs. Jeannette R. Haas and Mrs. Nathalie Haas Hirsch, filed an answer to said suit and a call in warranty. The answer admits that the land in question is wild, cut-over swamp land, and sets forth that plaintiffs are not, and have never been, in actual physical possession thereof. The answer further sets up defendants’ chain of title, and alleges that the tax sale upon which plaintiffs rely in this case as a muniment of title — that is, the tax deed from the Melville Land Company to Leopold Goud-chaux and Samuel Haas, dated May 28, 1910 — is null, void, and of no effect for the following reasons, to-wit: (1) That the sheriff’s deed in the suit styled “Howard Cole v. Melville Land Company”, in which Howard Cole became the purchaser of this property, states that the taxes for the years 1907, 1908, and 1909 had been paid and satisfied, in the following language as used in the deed: “I first collected from the said adjudicatee in cash the sum of Two Hundred and Fifty-two & 76/100 Dollars ($252.76) total amount of the costs of said suit and of this sale and of the unpaid taxes on said property for the year 1909”, and, further, “All taxes on said property for the year 1907, 1908 & 1909 have been paid”. (2) That the plaintiffs acquired nothing by virtue of their tax deed for the reason that the taxes for the year for which the property in question was sold to plaintiffs’ authors in title had been fully paid and satisfied prior to the date of such adjudication to plaintiffs’ authors in title on May 28, 1910. (3) That Howard Cole, the record owner of the property at the date of the advertisement and tax sale to Leopold Goud-chaux and Samuel Haas, never received any notice of tax assessment, tax delinquency, etc., prior to the tax sale, nor were any such notices sent to, or served on, the said Howard Cole by the tax collector. (4)That Leopold Goudchaux and Samuel Haas, plaintiffs’ authors in title, acquired under said tax deed only whatever right, title, and interest the said Melville Land Company had in or to said land on May 28, 1910, and on that date said Melville Land Company had no right, title, and interest in said land, and therefore said Goudchaux and Haas did not acquire, nor could they have acquired, any title whatever to said property. Defendants and respondents further plead the prescription of 10 years acqui-rendi causa, alleging that they and their authors in title have been in actual, corporeal possession of the property in question, publicly, notoriously, and uninterruptedly, in good faith and under a deed trans-lative of title, since January 15, 1910. They call in warranty Kyle Lumber Company, Ltd., and Riggs Cypress Company, Ltd., and pray for judgment in solido against the said warrantors for the original purchase price received by the war-rantors in their sale of said property to Joseph U. Gillespie, one of defendants’ authors in title, as well as for all taxes paid by the defendants and damages suffered, in the event that defendants are dispossessed of the land and their title declared invalid. Kyle Lumber Company, Ltd., answered the call in warranty on March 16, 1943, reiterating and adopting all the exceptions and pleas filed by the defendants and the defenses set up in their answer. The war-rantor further alleges that the tax sale relied upon by plaintiffs was absolutely null and void and of no effect because the property was sold for taxes which had been previously paid, as shown by the return of the sheriff on the order of writ of seizure and sale in Suit No. 18,306, “Howard Cole v. Melville Land Company”; that respondent, Kyle Lumber Company, and Riggs Cypress Company acquired the property involved in this suit from Howard Cole & Company, Inc., which in turn had acquired it from Howard Cole, who had acquired same by sheriff’s deed in the foreclosure proceeding styled “Howard Cole v. Melville Land Company” at public sale on January 15, 1910, said deed being dated January 21, 1910, and recorded on the same day in the conveyance records of St. Landry Parish; that said Howard Cole, Howard Cole & Company, and respondent, Kyle Lumber Company, Ltd., and its co-owner, Riggs Cypress Company, Ltd., went into possession of said property and remained in actual, open, and peaceable possession, as owners, by paying taxes thereon and by cutting and removing the timber therefrom in large, commercial quantities in the year 1912, and remained in possession for more than five years from and after the date of the sheriff’s deed in question. The respondent lumber company further pleads the prescription of five years, as set forth in Act 6 of 1928, and also the prescription of 10 years acquirendi causa against all the claims of the plaintiffs herein. Warrantor further admits that it and the Riggs Cypress Company, Ltd., are guarantors of the title of the defendants and are responsible for the original purchase price as well as for all taxes paid by the defendants. However, it denies that it is liable in solido for the full amount of the purchase price and taxes so paid, and admits liability for only one-half thereof. On June 21, 1943, plaintiffs filed a plea of three-year prescription under the provisions of Article 233 of the Constitution of 1898, which provided that: “No sale of property for taxes shall be set aside for any cause, except on proof of dual assessment, or of payment of taxes for which the property was sold prior to the date of sale, unless the proceeding to annul is instituted within six months from service of notice of sale, * * * or within three years from the adoption of this Constitution, as to sales already made, and within three years from the date of recor-dation of the tax deed, as to sales made hereafter, if no notice is given.” A plea of intervention was filed by the Gulf Refining Company, setting forth that defendants are the owners of the property in question, subject to a valid and existing oil, gas, and mineral lease to interven- or, and adopting as its own averments the allegations of defendants’ answer. The case was tried on its merits, and on March 9, 1944, after giving written reasons, the trial judge rendered judgment sustaining the plea of prescription of three years filed by plaintiffs and decreeing them to be the owners in fee simple of the property in question and ordering “that the cancellation and erasures to the pretended title to said land be duly made by the Clerk of Court to the property described herein”. On March 17, 1944, defendants applied for, and were granted, both suspensive and devolutive appeals to this court, and on March 29 intervenor, Gulf Refining Company, was granted a devolutive appeal. Kyle Lumber Company, Ltd., warrantor, did not appeal from the judgment of the lower court. Both plaintiffs and defendants trace their titles to the land involved to the Melville Land Company, which acquired the property by deed dated June 21, 1906. Defendants’ author in title, Howard Cole, acquired the property on January 21, 1910, by virtue of a sheriff’s deed in a foreclosure sale in the suit styled “Howard Cole v. Melville Land Company”. On June 10, 1910, Cole sold the property to Howard Cole & Company, and on October 17, 1910, that company conveyed the land to the Kyle Lumber Company, Ltd., and Riggs Cypress Company, Ltd. These parties subsequently sold the same to Joseph U. Gillespie as per deed dated January 4, 1919. Gillespie in turn conveyed the property to J. G. Law-ler on January 8, 1919, and thereafter, on April 9, 1920, Lawler sold the land to Dr. John A. Haas, who- in turn sold the same on January 6, 1923, to the defendants herein. Plaintiffs’ authors in title, Leopold Goud-chaux and Samuel Haas, acquired the property at tax sale as per tax deed dated May 28, 1910, recorded July 8, 1910, at which tax sale the property was sold for taxes assessed to the Melville Land Company for the year 1909. Goudchaux and Haas on March 19, 1912, conveyed the property to the Krotz Springs Hotel' Company, which in turn sold same to Walter F. Brown on September 3, 1918, Brown thereafter, ■ as per deed dated January 11, 1927, selling to Arthur Veltin and Arthur E. Veltiii, the original plaintiffs herein. The testimony adduced during the trial of this case on its merits is principally in support of defendants’ plea of 10-year prescription acquirendi causa, and it is therefore proper for this court to determine whether or not the. plea in question has merit and is well founded under the facts of the case under consideration. The land involved in this suit is low, swamp land, subject to overflow annually, the water varying thereon from four to eight feet in depth. The tract is not suitable for cultivation or habitation, and no one resides thereon or in the vicinity thereof. It is not near any settlements or public roads. In 1910, when the Kyle Lumber Company acquired this land, the principal commercial purpose for which it could he used was the cutting and removing of timber therefrom. These facts are conclusively shown by the testimony of certain witnesses. Charlie Hook, plaintiffs’ witness, testified as follows: “Q. Do you know the type or character of the lands in that section? A. It is all low land, swamp land. “Q. Is any of it susceptible of being lived upon or having persons erect homes and reside on it? A. Only up on the bayou, you could camp up there on the bayou certain times, it is a ridge, but there is no ridge there [on the property in question]. “Q. Do you know of any homes in Section 21, where people live? A. No, sir. “Q. You stated, I believe, that the nature of this land was principally swamp land? A. Yes, sir. “Q. That is correct? A. Yes, sir.” (Transcript, Volume II, pages 8, 9) Newton Williams, called as a witness by plaintiffs, testified as follows: “Q. Do you know the particular piece of property which is the SE14 of SW]4 Sec. 21, T-6-S., R-7-E, involved in this suit? A. Yes. “Q. Are you familiar with the kind of land that that is? A. Yes, sir. “Q. Please tell' the Court the nature of that land, whether it is low swampy or high or cultivable? A. It is not cultivable, it is considered overflow land. “Q. The whole of the land in that quarter section is considered swamp land? A. Yes. “Q. Are there any houses or other habitable dwellings on the Section? A. No, sir. “Q. Since the time you know the property, which I believe you stated was about 1918, has there been any camp or other dwelling occupied on the land? A. No, sir. * * * » “Q. Does that land overflow practically every year? A. Yes, sir, generally every year. “Q. It is not subject to cultivation or habitation at all? A. No, sir. “Q. And the only commercial purpose for which it could be used, was the timber ? A. No, sir. “Q. After the timber is off, what good is the land, could it be cultivated? A. No, sir. “Q. Couldn’t be used as a habitat? A. No, sir, it wouldn’t be any good for people to camp on. It is too far from any stream. (Pages 22, 23) * * * “Q. Would you say the particular 40 acres is very low? A. Yes. “Q. There is no 'ridge on'it that you know of? A. No high ridge, the water varies from 8 to 4 feet. “Q. The water standing on it now varies from 8 to 4 feet of water? A. Yes.” (Page 25) The testimony of Lloyd Waterhouse, defendants’ witness, reads in part as follows: “Q. At the time this timber was cut, what was the character of the land, was it open or wood or swamp land or what? A. It was wood swamp land. “Q. Was anybody living on that quarter section at the time you went on it? A. No. “Q. Was there any fences around it? A. No. “Q. How far was that land from the main road going to Krotz Springs? A. The main road that goes now to Krotz Springs ? “Q. Yes. A. It is about three miles. “Q. What was the' nearest public road at the time through this particular piece of swamp land? A. I don’t know, the only public road we had at that time was the one that came above through Krotz Springs from Melville, followed the levee down. As well as I remember that was about the nearest one. “Q. That was about how far? A. From Krotz Springs there, it is in the neighborhood of three or four miles.” (Page 52) The testimony adduced at the trial of the case on its merits shows conclusively that, immediately after Kyle Lumber Company acquired the property as per deed dated October 17, 1910, recorded on November 18 of the same year, it employed one Jim Kemper, a civil engineer, to make a survey of the property, and that, between the dates of December 6 and 14 of the year 1910, Kemper, accompanied by Lloyd Wa-terhouse and John Surrette, employees of Kyle Lumber Company, proceeded to survey the property acquired by the lumber company, which survey included the South 1/2»of Section 21, Township 6 South, Range 7 East, of which half-section the property here in dispute forms a part. Mr. Kemper, who was called as a witness, testified that, in making' the survey: “I marked the corners I made with an X and 3 hacks. The corner that faces the property I was surveying for the Kyle Lumber Company, I put a K on it, the corner that didn’t face it, I didn’t put a K on it.” (Page 38) It is true that, in surveying the South 1/2 of Section 21, the surveyor ran only the south boundary line of the Southeast 1/4 of the Southwest 1/4, and did not run the east, west, and north boundary lines of the 40-acre tract involved in this suit. However, the record shows beyond- any question that he was employed by Kyle Lumber Company to survey its property and in doing so surveyed the South 1/2 of Section 21, which necessarily included the the Southeast 1/4 of the Southwest 1/4, the property in question. As evidence of Mr. Kemper’s survey made in 1910 at the request of Kyle Lumber Company, Ltd., we find in the record a map made by him on which the property surveyed is tinted red. The fact that the land was surveyed and marked as testified by Mr. Kemper is further shown by the testimony of John F. Bennett, a civil engineer, who surveyed the property for the Gulf Refining Company in the summer of .1942. Mr. Bennett stated that he found a surveyor’s mark at the southeast corner of Section 21, said mark consisting of an “X”, three hacks, and the letter “K”. One Lloyd Waterhouse, a contractor who was engaged in the business of cutting and removing timber for the Kyle Lumber Company, Ltd., and who had selected the land subsequently purchased by said company, soon after the purchase of the property on October 17, 1910, and shortly after the survey made in December of the same year, began logging operations with a crew of men which varied from eight to 40 employees, and proceeded to deaden, cut, and remove from the tract involved in this suit all the merchantable cypress timber thereon. He testified that in these operations he and his men established a camp near the 40-acre tract in question and proceeded to construct a float road on the Southeast 1/4 of the Southwest 1/4 of Section 21, the land involved in this suit. They were engaged in these loggings operations, he said, for a period of two years — namely, the years 1911 and 1912. It will be noted that Lloyd Wa-terhouse is one of the employees of Kyle Lumber Company who accompanied Mr. Kemper while he was making his survey in 1910. The testimony shows that the cypress timber on the land was not cut and removed at intervals, and that it was not cut and removed fi'om a portion only of the 40 acres. On the contrary, the testimony shows beyond question that during the years 1911 and 1912 all the merchantable cypress timber was cut and removed from every portion of the tract. These operations by the Kyle Lumber Company, through its agents and employees, were performed in good faith and under a deed translative of title and valid on its face. It will be noted that the timber in question was deadened and prepared for cutting in the year 1911, and that in 1912, due to extremely high water, it was necessary to cut the timber anywhere from five to seven feet above the undercut and deadening around the trees, and due to this condition the stumps which remained on the land were from eight to 10 feet in height. Plaintiffs’ own witness, Charlie Hook, who has lived in the vicinity of the property here involved for a great many years, and who was one of the men engaged with Lloyd Waterhouse in these logging operations, testified that, to his knowledge, no timber was ever cut in the area of these operations nine or 10 feet above the ground other than that cut by Lloyd Waterhouse’s crew in 1911 and 1912 from the property involved in this suit. His testimony on this point is as follows: “Q. You remember well that you cut the timber on that 40 acres? A. Yes, sir, and the stumps prove it. “Q. What about the stumps proving it? A. When the water was low, we went in and deadened the timber, when the water was low. “Q. What year was that? A. 1910, beginning of winter when the sap was down, we under cut it. “Q. How high off the ground did you deaden? A. On the ground, except when we got a big spur tree we would climb up there. It wasn’t often we got one like that. Then when we went in and cut a few trees in the spring of 1911 but we didn’t get but a little water that year, and we needed water to float. In 1912 we just got plenty water. “Q. Wliat happened? A. Then we cut the timber above the rung and under cut. “Q. How high from the ground did you cut the timber? A. Six or seven feet above the under cut. “Q. How far above the ground would that be? A. I judge the rung is about three feet, and then we cut 6 or 7 above that. “Q. In other words, where you cut was about 9 or 10 above the ground? A. Yes, Mr. Waterhouse couldn’t camp in the camp because the water took it. We had to build a camp crib and stay on that. “Q. Was any other timber ever cut in that area to your knowledge some 9 or 10 feet above the ground, other than that cut by Mr. Waterhouse’s crew in 1912? A. No, sir. “Q. When the party went there Saturday, did you see any evidence of this occasion, were any of the stumps still there? A. All the stumps were still there up to the line. “Q. That is on this 40 acres? A. Yes. “Q. They are still there and there are still a large number of stumps? A. Yes.” (Pages 14-16) In the logging operations of Kyle Lumber Company, its employees, under the supervision and control of Lloyd Waterhouse, who was foreman, cut a float, commonly called “Lloyd’s road”, on the land in controversy, the Southeast % of the Southwest *4 of Section 21. This road was used for the purpose of floating the timber from the land in question by means of “gas boats”. This road is “known by all the old people” as the “Lloyd Waterhouse road”. In the latter part of 1919 and the early part of 1920, one Arthur Waterhouse cut all ash 16 inches in diameter or larger from the Southeast % of the Southwest the land in question, having acquired this timber from J. G. Lawler, one of defendants’ authors in title. Thereafter, in the spring of 1921, Arthur Waterhouse, through his employees, returned to the land and cut and removed all the remaining merchantable ash timber, cutting in both operations some 20,000 or 25,000 board feet from the particular tract in controversy. On June 19, 1943, the Saturday before the trial of the case, Lloyd Waterhouse, Newton Williams, John Surrette, John F. Bennett, and others returned to the property involved in this suit, and by their testimony shown in the record proved conclusively that portions of the old Lloyd Waterhouse road or float were still in existence, and that the stumps which had been cut some eight or 10 feet above the ground were still standing on the property. On these points their testimony is as follows: Charlie Hook: “Q. When you came back to the camp in Section 22 which is West of the 40 acres in controversy, did you find any land marks or old roads or anything? A. Yes. “Q. What road did you find? A. The Lloyd Waterhouse road, it is known by all the old people. “Q. They call it Lloyd’s road for Lloyd Waterhouse, who is present in court and who was your boss on the cutting job? A. Yes, sir, we cut the road. “Q. Did this road go on this tract? A. About the center, I think. “Q. What kind of road was that? A. A log road, we hauled logs through with gas boats, no mules or trucks could go in there at that time. “Q. It was a road anybody could follow? A. Yes, anybody that knew about it. * * (Page 12) Newton Williams: “Q. On the way back, did you come to Lloyd’s road? A. Yes, sir, had to cross it to go to the camp. “Q. You know the road well? A. Yes, towed timber on it before it sanded up. “Q. That road goes through the SE^ of the SW14, the land in dispute? A. Yes, sir. “Q. You heard what Mr. Hook said about the stumps being so high above the ground? A. Yes. “Q. Did you see the stumps? A. Yes. “Q. There were a substantial number of cypress stumps there? A. Yes.” (Page 24) Lloyd Waterhouse: “Q. Did you cut a float road to the land I have described? A. Yes. * * * “Q. Did you cut it [the cypress timber] from boats? A. Yes, sir, and there are a good many stumps probably yet. “Q. How high from the surface of the surrounding land was it you cut these trees? A. From the surface of the land it would make it anywhere from 8 to 10 feet high. “Q. Are those stumps there yet ? A. They are. “Q. When did you see them lately? A. Last Saturday.” (Pages 46, 47) John Surrette: “Q. Was there anything unusual about the stumps on that particular tract that you viewed Saturday? A. Yes, sir, the timber had been undercut and deadened and then had been cut above the undercut, apparently from the high stage of water. “Q. Is that unusual? A.' No, sir, it can’t be helped at times. “Q. Is there any land in that immediate area where stumps were cut, that high, other than the 40 you saw? A. I don’t know of any.. (Page 84) * * * “Q. This Lloyd road was put down in 1911? A. Yes. “Q. What is the condition of the road now ? A. It is not open so well, but other people have worked and travelled it some, but it can be followed. “Q. It doesn’t run up to the 40 acres? A. It is near, maybe some of it is on it. “Q. Is it usable? A. Yes, sir. “Q. Is it in use now? A. We used it. “Q. You used it in 1911 ? A. We used it Saturday, we travelled part of it. “Q. Wasn’t it under water? A. Yes, we travelled in a boat. We were floating but we were on the road. (Page 86) * * * “Q. On this road you speak of, Lloyd’s road, isn’t it a fact that brush and trees have grown over the road? A. Not much, from time to time different people have used it. It can be floated pretty well.” (Page 88) Taylor Talley: “Q. From the camp, where did you go last Saturday? A. We turned back and came to the spot we started, and on the way back we located Lloyd’s road. It showed where the old road was cut. “Q. For whom was that road named? A. Lloyd Waterhouse. “Q. Did you recognize that road? A. You could tell it was a road, I guess it has stopped up in places, but you could tell there had been an old road there. “Q. Did the road go. on the 40 acre tract in question? A. If that is where it was the road went there, went through. (Page 100) * * * “Q. Was there any evidence of cutting when you went back there last Saturday? A. When we went there Saturday, by the look of the stumps, it was cut 9 or 10 feet high, that is the only evidence I have it was the same land. “Q. Did you see any other cutting that high above the water in the immediate neighborhood other than the 40 acres? A. No. “Q. What kind of timber did you cut? A. Cypress only. (Page 101) * * * “Q. This Lloyd road that you speak of is now grown up in brush and little trees? A. Yes, sir, but you can see it was a road, you can see in spots it was a road. “Q. But to be used for logs again, it would have to be cleared out? A. I suppose so.” (Page 102) John F. Bennett: “Q. Did you see any opening that indicated a float road? A. Yes, sir, there were two. One had been used quite recently and the other one not so much. I was told it was Lloyd’s road, the one that hadn’t been used recently. “Q. That was pointed out as Lloyd’s road, the one that hadn’t been used recently? A. Yes. “Q. Of course you recognized the surveyor’s marks on the trees? A. Yes. (Page 108) * * * “Q. Would you have had any trouble going along that road, even if it hadn’t been pointed out to you, if you wanted to go in that direction? A. If I wanted to use the old float road. “Q. The point is, was it last Saturday, a well defined passage through the woods? A. It was an open passage way, not in a sense to be travelled by buggy and horse or automobile. It was a float road.” (Page 110) W. B. Robert: "A. We went in boats in a northerly direction from this point and then I lost track of the direction we were going, I wasn’t interested in the direction, we went down a float road, it was much clearer than the surrounding woods and you could handle small boats down it without difficulty- “Q. What was the name of the road? A. They said Lloyd’s road. “Q. To what point did you go? A. I went close to Lloyd’s camp or Water-house’s camp, I don’t know which it was. “Q. About how wide is that float road now? A. 15 or 20 feet I should say. “Q. Did you observe any itnusual appearance of the cypress stumps on the tract? A. The stumps had been cut about 10 feet above the water line and had been belted about the water line and evidently the water got above the first deadened part and it was necessary to cut the trees off above the high water. “Q. Did you observe that? A. I observed they were cut about 10' above the water. “Q. On this particular tract? A. Yes'.” (Pages 116, 117) It is also to be noted that the defendants granted an oil and gas lease on the property in question to the Roxana Petroleum Corporation on January 18, 1926, and again leased the property for oil, gas, and other minerals to J. B. Ferguson, Jr., on November 18, 1935, which lease was later assigned to Gulf Refining Company, intervenor herein. It is further to be noted that, according to a tax statement filed in the record by agreement of counsel, defendants and their authors in title were assessed with, and paid, the taxes on the property in question for the years 1910 through 1919 and for the year 1921. (The 1920 assessments and payment of taxes are not shown in the record because of the condition of the tax rolls.) They also paid the taxes assessed for the years 1936 through 1942. In other words, defendants’ authors in title paid the taxes on the property in question, after it was acquired at sheriff’s sale on January 21, 1910, for a period of 11 years. And it is also true that during this time, particularly during the years 1914, 1915, and 1916, plaintiffs’ authors in title also were assessed with the property but never paid the taxes due thereon. However, they, the plaintiffs, did pay the taxes assessed for the years 1921 through 1942. The testimony in this case clearly shows that Kyle Lumber Company, Ltd., and Riggs Cypress Company, Ltd., after acquiring the property as per deed dated October 17, 1910, recorded November 18, 1910 — a deed valid on its face and transla-tive of property — actually took corporeal possession of the property in question by having a survey made of the South % of Section 21, which necessarily included the Southeast % of the Southwest % of that section; that said survey was made by one Jim Kemper, a civil engineer, accompanied by Lloyd Waterhouse and John Surrette, employees of the lumber company, the said Waterhouse having, prior to said survey, actually selected the land in question to be purchased by Kyle Lumber Company for the purpose of having the cypress timber cut and removed therefrom, and that said survey was made so that the lumber company, through its employees, could cut the timber on the property actually purchased by it; that this survey was made between December 6 and 14 of 1910; that during the years 1911 and 1912 all the merchantable cypress timber was cut and removed from the tract in question, and that in these logging operations a camp was established near, but not on, the property, and that from eight to 40 employees of the lumber company were actually engaged in cutting and removing said timber; that during said years the lumber company actually cut and removed all the merchantable cypress timber from every portion of the 40 acres in question; that a float road was constructed on said property by the employees of the lumber company for the purpose of transporting logs cut from this and other land; that evidence of said road is still in existence, and that it was used as late as June 19, 1943; that said road is known to all the inhabitants as “Lloyd’s road”; that, in removing the timber on the land in question, due to high water it was necessary to cut the trees from eight to 10 •feet above the surface of the ground, a rather unusual procedure, and that said stumps as late as the year 1943 were still visible and easily recognized; that, in the latter part of 1919 and the early part of 1920, all the ash 16 inches in diameter and larger was cut and removed from the 40 in question by one Arthur Waterhouse, who acquired the timber from defendants’ author in title, and that thereafter, in the spring of 1921, all the remaining ash was cut and removed by him. The record shows that the defendants’ authors in title were assessed with, and actually paid, all taxes assessed against said property for the years 1910 through 1919 and also for the year 1921. In the years 1914, 1915, and 1916, the property was assessed to both plaintiffs’ and defendants’ authors in title, but defendants’ authors in title actually paid the taxes due thereon. The record further shows that plaintiffs paid all taxes assessed for the years 1921 through 1942, and that defendants were assessed with, and paid, the taxes for the years 1936 through 1942. As further evidence of defendants’ claim of ownership, we find in the record an oil and gas lease covering this property, granted by them on January 18, 1926, to the Roxana Petroleum Corporation, and another such lease-granted by defendants to J. B. Ferguson, Jr., on November 18, 1935. It is true, however, that on January 9, 1936, subsequent to the dates of the above mentioned oil and gas leases, plaintiffs, Arthur Veltin and Arthur E. Veltin, executed an oil and gas lease on this land to one H. J. Wier. However, nowhere in the record do we find any evidence that plaintiffs themselves or their authors in title ever took corporeal possession of the property in question, and, in truth and in fact, they allege in their petition that the land in question is wild, cut-over swamp land, and that neither they nor the defendants are in actual physical possession of said property. This brings us to the question of whether or not the possession by defendants and their authors in title of the property in question, as shown by the record, is sufficient basis for their plea of 10 years’ prescription acquirendi causa, bearing in mind the character of the land as set out hereinabove and the purpose for which the same could be used. In discussing land of this character, this court has used the following expressions, dating back as far as 1885: “If actual corporeal possession of wild timbered land in unreclaimed forest be necessary in order to enable one to acquire it by prescription, then it could never be so acquired unless we should invent some symbolic ceremony such as livery of seizin at common law.” Giddens v. Mobley, 37 La.Ann. 417. “The corporeal possession necessary to support the prescription is governed by the use for which the land is destined. If it is for pasturage, the grazing of cattle upon it is an act of corporeal possession. From its nature, it may prohibit an actual residence or cultivation. Timbered land may be enclosed, trees cut, roads run through it, and many other similar acts to show the intention to subject it to one’s dominion.” Chamberlain v. Abadie, 48 La.Ann. 587, 19 So. 574, 575. “That which is essential for actual possession changes with the nature of the property. It is different when it relates to one kind, from what it is when it relates to another. “Fields are taken possession of by cultivating them and gathering their fruits. The cultivation of flowers on a solitary hill which stands up or rises out of a plain may go far toward sustaining claim to the adjacent plain. Possession of low lands not fit for cultivation may be secured by establishing their boundaries, and seeking to protect the birds that meet and abide thereon, or the fish in their water, or by cutting thereon firewood, or any other active steps to the end of securing possession.” Boagni v. Pacific Imp. Co., 111 La. 1063, 36 So. 129, 131. “There may be physical possession of swamp lands. “The value of the land is in the trees. To cut them down and take them away requires considerable preparation and the use of different appliances. It may be that the mere cutting down of a few trees is not possession. It is different where operations are carried on with a view of pulling a number of trees, and when at every returning season work is done. The sound of the woodman’s axe is heard; the stir of the hands; the swamp boat going up and down the small streams; its resounding whistle heard — all go towards denoting possession.” South Louisiana Land Co. v. Riggs Cypress Co., 119 La. 193, 43 So. 1003, 1005. In Long v. Chailan, 196 La. 380, 199 So. 222, 226, the court said: “The cutting and removing of timber from.open swamp land is a sufficient character of possession to support the prescription of ten years if the operations are carried on frequently and for a considerable length of time and are accompanied by public signs showing an intention to possess the land, such as constructing and maintaining roads and other works, and paying the taxes on the land. Baker v. Towles’ Administratrix, 11 La. 432; Chamberlain v. Abadie, 48 La.Ann. 587, 19 So. 574; Industrial Lumber Co. v. Farque, 162 La. 793, 111 So. 166; Kees v. Louisiana Central Lumber Co., 183 La. 111, 162 So. 817. All of these cases are cited with approval in Martel v. Hunt, 195 La. 701, 197 So. 402.” In Dupuy v. Joly, 197 La. 19, 200 So. 806, 809, it was said: “Anatole Joly, the purchaser, took actual possession of the land in the year 1916, at which time it was covered by a heavy growth of timber. The timber was deadened and the necessary tracks and float roads were cut for the removal of the timber, which took place in the following years, during the periods of highwater in the swamp. These timber and logging operations extended over the whole tract and resulted in the removal of all the merchantable timber on the tract. As late as the year 1927, the land was worked for the purpose of scrapping the timber, but at that time very little timber remained on the property. In the years 1919 and 1920, a number of men were employed in gathering moss which was abundant among the trees. The testimony shows that the land was swampy in character, subject annually to overflow and that it was unfit for any other use than that to which it was put by Joly, or by others holding under him. This character of possession has been held to be sufficient to' form the basis for the prescription of ten years’ acquirendi causa. Kees v. Louisiana Central Lumber Co., 183 La. 111, 162 So. 817; Baldwin v. Arkansas-Louisiana Pipe Line Co., 185 La. 1051, 171 So. 442.” We are convinced that the Kyle Lumber Company, soon after its purchase on October 17, 1910, actually took possession of the land in question as owner, in good faith and under a deed translative of property, and that its possession, coupled with that of its vendees, continued to be open and uninterrupted for more than 10 years after 1910, and for these reasons we are of the opinion that the plea of 10 years’ prescription acquirendi causa should have been sustained by the lower court. Since we have concluded that the plea of prescription of 10 years acquirendi causa, filed by the defendants, is well founded, we find it unnecessary to discuss or pass upon the other issues raised by the parties in these proceedings. Even if it be conceded that plaintiffs acquired a tax title to this property by the prescription of three years, such title cannot prevail against defendants’ title established by the 10-year prescription acquirendi causa. For the reasons above assigned, it is ordered that the judgment of the lower court be, and the same is hereby, reversed and set aside, and plaintiffs’ suit dismissed. It is further ordered that defendants’ plea of prescription of 10 years acquirendi causa be, and the same is hereby, sustained; and accordingly it is ordered that defendants, Mrs. Jeannette R. Haas and Mrs. Nathalie Haas Hirsch, be recognized as the sole and rightful owners of the property involved in this suit as against the claims of plaintiffs herein; plaintiffs to pay all costs. ROGERS, J., concurs in the result.

HARDY, Judge. Careful examination of the record in this case convinces us that there is no proper appeal before this Court, by reason of the fact that there is no judgment of the lower Court forming the basis for appeal. The material facts bearing upon this point, as reflected by the minutes of the Court, are as follows: On December 10, 1942, judgment in favor of plaintiff was read, rendered and signed, and on December 11, 1942, a motion for rehearing was filed on behalf of John Barron, intervenor. On March 25, 1943, motion for rehearing was fixed for trial for March 29, 1943. On March 29, 1943, upon consent of counsel for plaintiff, the motion for rehearing was granted, and the case fixed for trial on the merits for April 1, 1943. On April 1, 1943, the case was tried, and the Court ruled that the interest of the intervenor in this suit had ceased to exist. The minutes of the Court of this date show specifically: “Bill reserved by counsel for intervenor to the ruling of the Court.” On April 5, 1943, intervenor moved for orders of appeal, suspensive and devolu-tive. Objection to allowance of a suspen-sive appeal was made by counsel for plaintiff, which objection was overruled. An order for the granting of appeals, sus-pensive and devolutive, was entered April 9, 1943. When the motion for a rehearing was granted, on date of March 29, 1943, this action had the effect of setting aside the judgment rendered and signed on December 10, 1942. Until another judgment was rendered and signed, or the original judgment reinstated and made final by the trial Court, there could be no foundation for an appeal. In State ex rel. Klotter v. Police Board, 51 La.Ann. 747, 25 So. 637, 638, the opinion of the Court quoted approvingly from the Am. & Eng. Enc. of Law, verbo “New Trial”, as follows: “An order granting a new trial, as a general rule, vacates a former judgment, without any special order to set it aside, and sweeps away the verdict, and leaves the case as though no trial had been had.” And, in Larose v. Naquin et al., 145 La. 1025, 83 So. 230, 232, the Court said: “The effect of the granting of the new trial was therefore the setting aside in toto of the judgment in which the error was thought to be found, and, in contemplation of law it ceased to exist, and could not then, and cannot hereafter, afford the basis of a plea of res judicata, an execution, or an appeal.” . For the purpose of the point here considered, the terms “new trial” and “rehearing” are synonymous, since the action of the Court, either in granting a new trial or in granting a rehearing, has the effect of setting aside the original judgment. The orders of appeal were granted from a “ruling” of the Court, and not from any judgment. As a matter of fact, no judgment existed. It is elementary that a judgment is the basis of an appeal, and, accordingly, there is nothing before this Court for determination. The appeal is dismissed at appellant’s cost

ROGERS, Justice. On October 23, 1924, Mrs. J. B. Atkins, Sr., agreed to sell and Willie V. Smith agreed to purchase Lot 18, Block C, of the Pine Grove Addition to the City of Shreveport. The agreed purchase price was $399, payable $1 cash and $1 per week in advance until paid. Willie V. Smith paid Mrs. Atkins on account of the contract $271, the last payment of $24.50 being made on June 17, 1940. On July 16, 1940, Mrs. Atkins filed suit against Willie V. Smith to recover judgment for $881.04, which she alleged was the balance due on the purchase price, and payment of taxes, with interest, coupled with a demand for the recognition and enforcement of a vendor’s lien and privilege upon the lot of ground and the improvements. Willie V. Smith, although personally cited, failed to answer the suit and on September 28, 1940, judgment by default was rendered in favor of Mrs. Atkins and against Willie V. Smith in accordance with the prayer of plaintiff’s petition. The defendant, Willie V. Smith, did not appeal suspensively from the judgment and after it became executory, the plaintiff, Mrs. Atkins, caused a writ of fieri facias to be issued, by virtue of which the sheriff of Caddo Parish seized the property and advertised it for sale. At the sheriff’s sale, which took place on July 2, 1941, the property was adjudicated to Mrs. Atkins for the sum of $800. Prior to the sale, John Smith, the husband of Willie V. Smith, intervened in the suit and filed a third opposition, alleging that he was .the owner of the house which he had erected on the lot of ground with his separate funds; that the house was occupied by him and his family and was erected to the knowledge and with the consent of Mrs. Atkins, and that he had filed with the sheriff an affidavit of ownership in compliance with Act 37 of 1882. He prayed for judgment against Mrs. Atkins in a sum equal to the value of the house, together with attorney’s fees. In the alternative, he asked for a judgment releasing his home from the illegal seizure and giving him a reasonable time within which to remove the house. Subsequently, he amended his petition and asked to be paid by preference and priority out of the proceeds of the sale a sum equal to the value of the house. On the day preceding the sheriff’s sale, John Smith again amended his petition and asked that the sheriff be ordered to hold the proceeds of the sale pending the further orders of the courts An order .to that effect was signed by the judge of the district court. John Smith, however, did not apply for and obtain an order for a separate appraisement and sale of the house of which he claimed the ownership. After an exception of no cause of action was overruled, Mrs. Atkins answered the opposition of John Smith. In her answer she alleged that the house was constructed by John Smith with community funds; that it was immovable property and subject to her vendor’s lien; that the sales contract, although purporting to be signed by Willie V. Smith, was in fact signed by John Smith who represented himself as being Willie V. Smith; that John Smith made partial payments under the terms of the contract, and that at all times, until default, he recognized the contract as a valid and enforceable obligation of the community existing between him and his wife, Willie V. Smith; that he had full knowledge of the contract and was therefore estopped from contending that it was not a valid obligation of the community and that the property mentioned in the contract was not community property. Mrs. Atkins specifically denied that she had agreed with John Smith that he could remove the house from the lot or that she had any agreement with reference to the lot other than the written agreement attached to her petition. The opposition of John Smith was tried on its merits in the district court on November 14, 1941, and judgment was rendered and signed dismissing the opposition. The third opponent perfected an appeal from the judgment to the Court of Appeal for the Second Circuit. Previously, on September 4, 1941, Willie V. Smith applied for and was granted a devolutive appeal from the judgment rendered against her on September 28, 1940. The Court of Appeal reversed the judgment of the district court, so far as he recognized Mrs. Atkins as having a vendor’s lien on Lot 18, of Block C, Pine Grove Addition to the City of Shreveport, and ordering this property sold, together with the improvements, to satisfy her lien, and dismissed as of nonsuit the third opposition of John Smith. On the application of John Smith, this Court granted a writ of review and set aside the judgment of the Court of Appeal, holding that the demand of the opponent, John Smith, based on the alleged ownership of -the property, was not dependent upon the outcome of the suit between Mrs. Atkins and Willie V. Smith and that the issue raised by such demand must be passed upon notwithstanding the entry of a judgment against Willie V. Smith. The Court accordingly remanded the case to the Court of Appeal for the purpose of passing upon the opposition of John Smith, who died while the case was'pending in this Court and his wife, Willie V. Smith, individually and as tutrix for his two grandchildren, Johnnie Mell Jones and Berdie L. Jones, were made parties to the suit. Atkins v. Smith, 204 La. 468, 15 So.2d 855. On the second hearing of the case pursuant to the decree of this Court, the Court of Appeal rejected the demand of the third opponent and affirmed the judgment of the district court. On the application of Willie V. Smith, individually, and as tu-trix of the minors, Johnnie Mell Jones and Berdie L. Jones, a writ of review was again granted by this Court and the matter is now before us for our further consideration. The record shows that John Smith at all times recognized the agreement of sale made by Willie V. Smith, his wife, with Mrs. J. B. Atkins as a valid and legally enforcible obligation of the matrimonial community existing between him and Willie V. Smith. In the year 1927, he erected a house ■ on the lot of ground his wife agreed to purchase which he continued to occupy with his family until Mrs. Atkins, who agreed to sell the lot, obtained a judgment against Willie V. Smith, recognizing the lien and privilege claimed by her and authorizing the house and lot to be sold to satisfy her judgment. This judgment, as- held by the Court of Appeal, was clearly erroneous, because Mrs. Atkins had never parted with title to the lot of ground she agreed to sell to Willie V. Smith, and she was not entitled to a vendor’s lien on her own property nor was she entitled to a vendor’s lien on the house which John Smith had erected on the lot. Under our law, the house and other improvements -placed by John Smith on the lot of ground owned by Mrs. Atkins being immovable by nature became a part of the lot. Civil Code, Arts. 464, 504; Westwego Canal & Terminal Co. v. Pizanie, 174 La. 1068, 142 So. 691; Buchler v. Fourroux, 193 La. 445, 190 So. 640. Article 504 of the Civil Code provides that things united to or incorporated with property belongs to the owner of the property, according to the rules established in the following articles. One of those articles is 508 which modifies the general rule announced in Article 504. Article 508 treats of the reciprocal rights and obligations of the owner of the land and of a third person who erects buildings on the land or otherwise improves it. The provisions of the article apply both to possessors in bad faith and possessors in good faith. In the case of a possessor in bad faith, the owner of the land is not considered as the owner of the constructions unless he elects to take them. He may require their demolition or removal. If he elects to keep the improvements, they become his and he owes the person who makes them the cost of material and the price of workmanship. If the person making the improvements does so in good faith believing himself to be the owner or to have the right to do so, the owner of the land built upon has no right of election. He can not refuse to keep the buildings. They are his as part of the soil, but he is bound to reimburse the builder in one of two ways, of which he has the choice— either by paying him the cost of material and the price of workmanship, or by paying a sum equal to the enhanced value of the land. The builder in good faith is thus made as it were the negotiorum gestor of the owner of the soil, and the works constructed by him are considered as made for and on his (the owner’s) account and brings into operation the rule of Article 505 of the Civil Code that “the ownership of the soil carries with it the ownership of all that is directly above and under it.” Johnson v. Weinstock, 31 La.Ann. 698. While the agreement of sale entered into between Willie V. Smith and Mrs. Atkins did not transfer the ownership of the lot of ground to the matrimonial community existing between Willie V. Smith and her husband John Smith, in view of the nature of the agreement arid by the acts of the parties themselves, it amounted to a sale in the sense that it authorized John Smith and his wife to take possession of the lot and to build and occupy their home thereon. The agreement of Willie V. Smith to purchase the lot of ground owned by Mrs. Atkins provided for the payment of the purchase price of $399 on the basis of $1 cash and $1 per week in advance until paid. John Smith built the house on the lot under the agreement of sale with the knowledge of and without any objection from Mrs. Atkins. He must therefore be held to have acted in good faith and with the intent of ultimately paying for and becoming the owner for the benefit of the matrimonial community of the lot of ground improved by him. Therefore, at the time Mrs. Atkins brought the suit against Willie V. Smith she was the title owner of the lot and was also in a sense the owner of the house constructed thereon, subject to her obligation to pay John Smith either the cost of the material and the price of workmanship or a sum equal to the enhanced value of her land. In these circumstances, the Court of Appeal correctly held that [21 So.2d 89, 93]: "When the house and lot were sold in globo and Mrs. Atkins secured a deed to them from the sheriff, we found that she had not acquired any additional title. In other words, the sheriff’s sale was • not made of property belonging to Mrs. Atkins’ debtors, but of property owned at the time by Mrs. Atkins, and since she had legal title to the property before the „ale, she acquired nothing by virtue of the sale. After the sale had taken place, Mrs. Atkins was still the record title holder of the property and the community of acquets and gains existing between j'ohn Smith and Willie V. Smith was still the owner of the contract to sell the property.” The Court of Appeal further correctly pointed out in its opinion that the judgment erroneously rendered by the district court against Willie V. Smith, which it had reversed, had become final and that the sale of the property thereunder did not change in any manner its status as it existed before the suit and the illegal sale made under the judgment rendered therein. John Smith, the third opponent, appeared in the case solely because of the proposed sheriff’s sale and for the purpose of availing himself of certain benefits flowing therefrom. Since the sale has been annulled by the Court of Appeal and that judgment is now final, there are no benefits flowing therefrom of which John Smith can avail himself and, as, correctly held by the Court of Appeal, there is nothing left in the case on which to base a judgment in his favor. The Court of Appeal further correctly held: “Third opponent, as head and master of the community existing between him and Willie V. Smith, had the same ■ rights under the contract of sale after our former decision as he had before the suit was filed against Willie V. Smith. John Smith’s death has in no manner changed the legal aspects of the casé.” The same thing may also be said of the present decision of the Court of Appeal. For the reasons assigned, the judgment of the Court of Appeal is affirmed.

WESTERFIELD, Judge. Wenclay Edwards represented-by Marion Grinstead, attorney-in-fact, alleging that he is the sole heir of Adeletta Davis, Widow of Arthur Edwards, by reason of a certain act of adoption passed before John Wagner, Notary Public, on the 6th day of October, 1922, seeks, in this proceeding-, to be recognized as the sole owner of a piece of real estate which he avers to have been the separate property of Adeletta Davis Edwards. Mabel Edwards, widow of Jessie Netter, Emily Edwards, wife of Oscar Belton and Irben Edwards, having been cited by Wen-clay Edwards, answered and averred that the real estate belonged to the community which heretofore existed between their late father, Arthur Edwards and Adeletta Davis, and that as the children of their father by a prior marriage they are entitled to his share in the community in the proportion of one-sixth to, each of them. By supplemental petition Wenclay Edwards, alleging that Alvin G. Davis, brother of Adeletta Davis, his foster mother, was claiming the property in dispute and that there were other brothers, asked and obtained the appointment of a curator ad hoc to represent the absent heirs in the person of Joseph Bowab, who appeared and submitted the matter “to the discretion of this Honorable Court”. There was judgment below in favor of Wenclay Edwards as prayed for and Mabel Edwards Netter, Emily Edwards Bel-ton and Irben Edwards have appealed. The undisputed facts are that in the year 1917, Adeletta Davis married Arthur Edwards and. by this marriage there was no issue nor did Adeletta have any children by any other marriage (she had been married twice before). Arthur Edwards had three children by a previous marriage and they are the ones contesting the title to this property. On October 6th, 1922, Arthur Edwards and Adeletta Davis adopted Wenclay Edwards, the plaintiff herein. In the same year, which was five years after her marriage to Edwards, Adeletta ■acquired the real estate in question by act before John C. Wagner, Notary Public, in which there is a declaration to the effect -that the property was acquired with the separate and paraphernal funds of Adeletta Davis. In 1927 a simulated transfer of the property was made to Irben Edwards because of the fear entertained by Adeletta that it might be subject to execution. In 1939 it was retransferred by Irben Edwards to Adeletta Davis. The transfer of the property to Irben Edwards and its subsequent return to Adeletta Davis is of no importance for no one claims any right or interest resulting from that transaction. The question for determination is whether the property is paraphernal or community. Having been acquired during the existence of the community it is presumed to be community property. Houghton v. Hall et al., 177 La. 237, 148 So. 37, 39. The fact that there is a declaration in the transfer to the effect that the property was acquired by paraphernal funds is immaterial. “The wife, and those claiming through or from her, to overcome the presumption in favor of the community, must establish three crucial facts, namely: “(1) The paraphernality of the funds; (2) the administration thereof separately and apart from her husband; and (3) investment by her. Stauffer, Macready & Company v. Morgan, 39 La.Ann. 632, 2 So. 98.” Houghton v. Hall, et al., supra. See, also, Succession of Howell, 177 La. 276, 148 So. 48 and Lotz, et al. v. Citizens Bank & Trust Company et al., La.App. First Circuit, 17 So.2d 463, 466. We find in the record testimony by Mabel Edwards Netter, Emily Edwards Bel-ton and Irben Edwards to the effect that the property was bought with funds supplied by Adeletta Davis and their father, Arthur Edwards, as a result of their joint, efforts. Adeletta Davis was a midwife. Counsel for Wenclay Edwards mainly rely upon the declaration in the act of sale signed by Edwards which they claim to be prima facie proof of the paraphernal character of the property. As we have seen this is insufficient to overcome the presumption that it is community property. "As we have said, all of the property ever acquired by Mrs. McCormick was acquired by her during her marriage. The presumption therefore is that the moment it was acquired the title to it vested in the community, or in other words that it became the property of the community, existing between the two spouses — and this, no matter in whose name the acquisitions were made — whether in the name of the husband or in the name of the wife. Civil Code, art. 2402. Such being the presumption, those who assert that property so acquired is the separate property of one of the spouses must establish it. Huntington, Administrator, v. Legros, 18 La.Ann. 126; Cosgrove v. His Creditors, 41 La.Ann. 274, 6 So. 585. This presumption is not overcome by the declaration of the spouses in a deed to the wife that the latter is purchasing with her own separate and paraphernal funds, under her separate administration. Shaw v. Hill, 20 La.Ann. 531, 96 Am.Dec. 420; Gogreve v. Dehon, 41 La.Ann. 244, 6 So. 31.” Our conclusion is that the property belonged to the community existing between Arthur Edwards and Adeletta Davis and that, therefore, it belongs jointly to Wenclay Edwards and Mabel Edwards Netter, Emily Edwards Belton and Irben Edwards. Under Article 913 of the Revised Civil Code the German brothers and sisters participate in both lines, the paternal and maternal, consequently, Wenclay Edwards as an heir of his foster parent, Arthur Edwards, would inherit one-fourth of one-half of the community or one-eighth plus his foster mother’s one-half interest or a total of five-eighths of the entire community. The other three, children of Arthur Edwards, would each inherit one-eighth. For the reasons assigned the judgment appealed from is reversed and it is now ordered that Wenclay Edwards be recognized as the owner of an undivided five-eighths interest and Mabel Edwards, widow of Jessie Nettie, Emily Edwards, wife of Oscar Belton and Irben Edwards be recognized as the owner of an undivided one-eighth interest each in the following described property: “A certain lot, with the buildings and improvements thereon, rights, ways, privileges and servitudes thereunto belonging or in anywise appertaining, situated in the First District of New Orleans, in Square 476, bounded by Poydras, Bolivar, LaFay-ette and Bertrand Streets, designated by the No. 8, as per plan drawn by Grim and Castaing, surveyors, dated June 18, 1850, and deposited in the office of A. Barnett, Notary; said lot measuring in English measure, 28 feet, two inches front on Poy-dras Street, and extending in depth one hundred feet, between parallel lines. “Improvements bear the municipal No. 1948 Poydras Street. “Being the same property acquired by Act before John Wagner, Notary, dated June 10th, 1939, and registered C.O.B. 507, Folio 192.” All costs to be. borne by Wenclay Edwards, plaintiff and appellee. Reversed.

FOURNET, Justice. The rule taken by Mrs. Katie M. Brown against her tenant, O. P. Boudreaux, to have him vacate her property at 1029 Jena street, New Orleans, Louisiana, having been dismissed on a plea of res judicata in the First City Court of New Orleans and that judgment affirmed in the Court of Appeal for the Parish of Orleans, we granted a writ of certiorari upon Mrs. Brown’s application in order that we might review the proceedings. Mrs. Brown, owner of a double house on Jena street bearing the municipal numbers 1029 and 1031, leased No. 1029 to 0. P. Boudreaux for a period of one year, beginning on October 1, 1942, and ending September 30, 1943, at $35 a month. By letter dated July 28, 1943, she notified him that she wanted him to vacate the premises then occupied by him at the termination of the lease because she had sold the house where she was then residing and would have to vacate it on October 1. She also advised him that she had permission from the O. P. A. “to do this.” When Boudreaux failed to comply with her request, she took a rule against him on October 1 to have him vacate the premises, giving as her reasons in this rule, in addition to the statement that she had given the required ten day notice, that she desired the premises “for Own Occupancy, and Repairs.” On the return day, Bou-dreaux filed exceptions of no cause, no right of action, and vagueness, and, in conformity with the rules of the court, also filed an answer wherein he averred that he was a married man with four children and was occupying the premises under a written lease that had been renewed by recon-duction; in the alternative, that the plaintiff had no legal right under federal statutes to eject him from the premises because at the time she had given him notice in July she had also given notice to the occupant of the 1031 part of the double house to move and had occupied that side when the tenant complied with her request, and that 1031, consisting of six rooms, was ample for the needs of the plaintiff, an elderly lady without any family. lie further averred that he had been informed and believed Mrs. Brown intended to make apartments out of the house and in this manner collect a higher rent than he was paying. From the penciled and unsigned notation on the record from the First City Court of New Orleans, it appears that this rule was dismissed on October 6, 1943. On October 16 of the same month the plaintiff again notified the defendant in writing to vacate the premises and caused another rule to issue against Boudreaux on November 3, 1943, when he failed to comply with this second written request. In both the letter and the rule she stated she was seeking to occupy the premises in absolute good faith as a dwelling for herself. On the return day the defendant pleaded the judgment in the former proceeding as res judi-cata, exceptions of no right, no cause of action, vagueness, and, again in compliance with the rules of the court, submitted an answer, similar to that filed in the former proceedings. The court maintained the plea of res judicata in a written judgment that was read and signed in open court on November 17, 1943. This judgment was affirmed by the Court of Appeal for the Parish of Orleans. It is declared in Article 539 of the Code of Practice, wherein final judgments are defined and their force and effect given, that a final judgment decides all of the points in controversy between the parties and has the force of res judicata. (As to what constitutes “the thing adjudged,” see Article 2286 of the Revised Civil Code; Hope v. Madison, 194 La. 337, 193 So. 666, and the authorities therein cited.) But, in order to have force and effect a definitive or final judgment must be signed by the judge rendering it. Articles 546 and 1074 of the Code of Practice. See, also, Ex parte Nicholls, 4 Rob. 52; Davis v. Millaudon, 17 La.Ann. 97, 87 Am.Dec. 517; Nicholls v. Maddox, 52 La.Ann. 496, 26 So. 994; Hanchey v. St. Louis, I. M. & S. Ry. Co., 135 La. 352, 65 So. 487; and State v. Oliver, 143 La. 180, 78 So. 439. And a judgment that has not been signed cannot be appealed from, much less have the force and effect of res judicata. Gates v. Bell, 3 La.Ann. 62; Hatch v. Arnault, 3 La.Ann. 482; and Derbigny v. Trepagnier, 12 La.Ann. 756. It is our opinion, therefore, that the judge of the First City Court erroneously dismissed the relatrix’ suit on the plea of res judicata. However, counsel for the respondent assures us, both orally and in brief, that when this case was tried de novo in the Court of Appeal, where the same exceptions and pleadings were urged, Judge Janvier, as the organ of the court, referred these exceptions to the merits and rendered judgment affirming the judgment of the First City Court only after hearing the merits of the case. There is no indication in the record that the case was decided in the Court of Appeal on the merits. In affirming the judgment of the lower court the Court of Appeal, assigning no written reasons, did nothing more than write the following notations on the face of the record: “January 7th, 1944 Judgment affirmed George Janvier, Judge,” and “February 1st, 1944 New trial refused George Janvier Judge.” Under these circumstances, in the interest of justice, we think the case should be remanded to the Court of Appeal in order that it may be determined whether the case, when tried de novo there, was decided on the merits, as contended by counsel for the respondent; and, in any event, to render judgment in accordance with the law and the facts of the case. For the reasons assigned, the judgment of the First City Court of New Orleans sustaining the plea of res judicata and dismissing relatrix’ suit and the judgment of the Court of Appeal for the Parish of Orleans affirming that judgment, are annulled and set aside, and the case is remanded to the Court of Appeal for the Parish of Orleans for further proceedings consistent with the views herein expressed. All costs in this court, as well as all other costs connected with these proceedings, are to await the final determination of the case.

HAMITER, Justice. Philip Nugier instituted this proceeding for the purpose of enjoining and prohibiting the seizure and sale of his lands in suit No. 15,020, entitled John Nugier v. Philip L. Nugier, on the docket of the Fifteenth Judicial District Court for the Parish of Vermilion. In that cause, the principal defendant herein and plaintiff’s brother, John Nugier, had obtained an order of execu-tory process for the foreclosing of a mortgage on the property executed by this plaintiff on March 27, 1935, as security for his two notes, one for $14,000 and the other for $1,000, made payable to the order of the Holder or Holders thereof. The foreclosure was sought only to the extent of the $14,000 note. In his petition for the injunction, plaintiff alleged “that the defendant is not the holder and owner of the note * * that “the defendant herein obtained the notes in question by collusion, fraud and misrepresentation and is not entitled to continue in the possession of same”; and “that the note of $14,000 sued upon has been paid”. He prayed for the issuance, first, of a temporary restraining order, next, of. a preliminary injunction, and, in due course, of a permanent injunction. Additionally, he prayed for a judgment decreeing the order of executory process to be null and void and awarding him the sum of $400 for attorney’s fees and traveling expenses. Those made parties to the action were John Nugier, who is the principal defendant, and the Sheriff of Vermilion Parish. The court granted a temporary restraining order, on the showing made by plaintiff, and it directed the issuance of a rule ordering the defendants to show cause on a designated date why a preliminary injunction should not issue. On the rule’s return day John Nugier excepted to the petition on .several grounds, and, with reservation of his rights under the exceptions, answered. The answer contained denials of plaintiff’s allegations and also affirmative averments that such defendant is and has always been the legal holder and owner, for value, of both of the notes. The Sheriff likewise filed an answer. Then it was agreed and stipulated by counsel for all parties that the case be taken up on its merits and a final judgment rendered. The court, after hearing the evidence, overruled the exceptions and rendered judgment on the merits in favor, of defendants, rejecting the demands of plaintiff for in-junctive relief and dismissing the suit at his costs. From the judgment plaintiff perfected a devolutive appeal. On his appearance in this court, appellant’s counsel merely offered a few remarks regarding the nature of the litigation; he pointed out no specific error in the district court’s judgment. Neither did he file a written brief supporting the appeal. Our appreciation of the case is that it presents ' only the question of fact of whether John Nugier is the holder and owner for a valuable consideration of the note signed by Philip Nugier and involved in the foreclosure proceeding. Obviously inconsistent with the allegations of the petition (that the notes were obtained by John Nugier through fraud and misrepresentation and that they have been paid) was the position assumed by plaintiff at the trial which was that he executed the notes solely for his own con venience and protection. When they were executed, so he testified (but over defendants’ objections), he was engaged in a controversy with the Federal Government respecting certain liquor taxes which it claimed, and the notes, secured by the mortgage, were signed by him and delivered to John Nugier only for safekeeping and with the view of preventing the loss of his (Philip’s) property to the government through the filing and enforcement of tax liens. The theory thus advanced on the trial of the case is supported only by plaintiff’s testimony. No other witnesses and no documentary evidence were offered in corroboration. John Nugier, on the other hand, furnished witnesses, in addition to himself, and also produced various documents, to show that the notes were given to him by Philip Nugier in the year 1935, to evidence an indebtedness equalling the amount thereof that resulted from numerous transactions dating back as far as 1913. Some of these transactions involved the making of money advances to plaintiff and the payment of his obligations to banks and other creditors at a time when he was in serious financial difficulties. In resolving the question of fact against plaintiff and in accepting as true the situation contended for by John Nugier, the district judge, in his written reasons for judgment, observed: “The evidence, oral and documentary, esr tablish that the two brothers, John and Philip, were always on friendly terms and had for a number of years had various business transactions together. John Nugier has been a successful lawyer, business man, farm operator and money lender for many years and has been regarded as successful in all these' branches. Philip Nugier has not been successful; his many ventures would strike bottom and required legal and financial assistance to tide him over. The old, broken, worn and disintegrating account book kept by John Nugier tells an eloquent story of how. long and in how many ways he kept his brother going through dark and heavy weather. /The transactions shown therein cover a long period, including the period immediately preceding the present litigation. “Apart from the transactions disclosed in the entries of this book, which the Court saw and was authorized to inspect, the evidence shows that John Nugier obtained the disputed mortgage notes for valuable consideration from the very time of their issuance and exercised during his tenure of possession all the prerogatives of ownership.” It is our opinion that the record, which we have carefully and thoroughly studied, warrants that conclusion; hence, the announced holding will not be disturbed. For the reasons assigned the judgment appealed from is affirmed at plaintiff’s costs. HAWTHORNE, J., does not take part.

McCALEB, Judge. Appellee moves to dismiss this appeal on the ground that the amount in controversy exceeds $2000 and, therefore, is within the appellate jurisdiction of the Supreme Court under Section 10 of Article VII of the Constitution of 1921. The record reveals that appellee brought suit against appellant in the Civil District Court for the recission of a contract of sale of real property and for the recovery of $420 deposited with appellant, as agent, for the faithful performance of the contract. He alleged in his petition that, on February 2, 1944, he and his wife signed a written offer to purchase the real property designated as Nos. 4112-4114 Eagle Street in the city of New Orleans for the price of $4200; that said offer was accepted in writing by appellant on February 3, 1944; that, although appellant designated himself as agent in the agreement of sale, he was actually acting for and in his own behalf as owner of the property; that, under the terms of the sale agreement, appellee obligated himself to deposit 10% of the purchase price with appellant and that, on February 4th 1944, he made said deposit amounting to the sum of $420. He further alleged that, after the execution of the agreement of sale, he proceeded to have the title to the property examined and a survey made; that, according to the survey, the improvements on the land encroach upon other property adjoining it in the rear; that, for this reason and for the further reason that the title to the property is suggestive of litigation, he is entitled to have the agreement of sale rescinded and to the return of his deposit together with recovery for certain expenses incurred by him amounting to $20.50. He prays accordingly. The defense to the suit is that the title to the property is good and merchantable and appellee also reconvened for a specific performance of the contract. After a trial, there was judgment for appellee, as prayed for, and appellant appealed to this court. Since the main demand of the appellee is for the recission and annulment of a contract to purchase real estate for $4200, it is apparent to us that the Supreme Court has appellate jurisdiction of the controversy. It has been repeatedly held by this court, in a long,,line of decisions, that, where a contract for the sale of property involving < more than $2000 is sought to be rescinded, we are without jurisdiction, even though the amount of the monied demand is for the recovery of a sum within our appellate jurisdiction. See Bussey v. Barilleaux, 14 La.App. 82, 129 So. 167; Hunley v. Ascani, 14 La.App. 95, 129 So. 164; Bussey v. Wise-Miller, 14 La.App. 104, 129 So. 166; Boisseau v. Vallon & Jordano, 15 La. App. 389, 132 So. 237; Himel v. Fellman, 16 La.App. 347, 132 So. 532, 133 So. 451; Roe v. Maniscalco, 15 La.App. 281, 131 So. 607; and Baumann v. Michel, La.App., 176 So. 907. Counsel for appellant, however, proclaims that all of the foregoing authorities have been impliedly, if not expressly, overruled by the Supreme Court in the comparatively recent decision of Richardson v. Charles Kirsch & Co., 191 La. 991, 187 So. 1, where that court re-transferred an appeal to us, holding that we had erroneously transferred the matter to it in our opinion in 179 So. 631. In the Richardson case, plaintiff brought suit to recover certain U. S. Treasury bonds which she had deposited with a firm of real estate agents, in lieu of a cash deposit of $800, to guarantee that she would carry out a contract to buy from a Mrs. Murphy a house and lot for the price of $8000. Mrs. Murphy was joined with the real estate firm as a defendant to the suit. In defense to the action, she claimed that she was entitled to the deposit because the contract to purchase the house and lot had been breached through the fault of plaintiff. The real estate firm claimed a lien on the deposit to secure its commission of $320. After a trial of the case on the merits, the district court gave judgment for the plaintiff ordering defendants to return the deposit to her and further granted judgment against Mrs. Murphy for an additional sum of $800 (double the deposit) plus attorneys’ fees and expenses. The defendants prosecuted an appeal to this court, where the matter was later transferred to the Supreme Court on the ground that we were without jurisdiction because the full purchase price of the contract of sale was the amount in dispute. See La.App., 179 So. 631. When the case reached the Supreme Court, that court found that we were wrong in holding that we were without jurisdiction as the amount in dispute did not exceed double the amount of the deposit, which plaintiff had placed with the real estate agents. In thus concluding, the Supreme Court said [191 La. 991, 187 So. 2]: “The price for which Mrs. Richardson agreed to buy and for which Mrs. Murphy agreed to sell the- property, — which was $8,000, — was never in dispute, or in contest, in this suit. All of the parties to the suit acknowledged. in their pleadings that the contract for the sale of the property was at an end before the suit was filed. The only question in dispute was whether it was through the fault of Mrs. Murphy or through the fault of Mrs. Richardson that the contract was not carried out. There was no demand for specific enforcement of the contract, by either Mrs. Richardson or Mrs. Murphy, in this suit.” The court then went on to state that the facts of the case, so far as the question of jurisdiction was concerned, were very similar to those presented in the case of Villemeur v. Woodward, 171 La. 831, 132 So. 361, and quoted at length from that opinion. In the Villemeur case, the plaintiff, who had offered to purchase certain real estate from Woodward for $10,000, through a firm of real estate agents, and had deposited with said agents $1000 as a guarantee of compliance with the offer, brought suit against Woodward and the agents for the return of the deposit on the ground that the offer had never been accepted in writing by Woodward. Both defendants resisted plaintiff’s demand on the ground that Woodward did accept the offer to purchase and that he even tendered to plaintiff a deed to the property which the latter, without sufficient reason, refused. From a judgment sustaining plaintiff’s demand, an appeal was taken by defendants to this court. We transferred the case to the Supreme Court on the theory that the amount in contest was $10,000, the purchase price of the property. See 14 La.App. 597, 130 So. 366. However, the Supreme Court declined jurisdiction (see 171 La. 831, 132 So. 361, 362) on the ground that the amount in dispute did not exceed $2000, even though the defendants, by their answers, maintained that plaintiff should not be permitted to recover the deposit because the contract was breached through plaintiff’s fault. The court, in speaking of the answers of the defendants, said: “It does not add anything to the amount or value of the thing demanded by plaintiff. Even if the Court of Appeal should be called upon, in deciding the sufficiency of the defense, to pass upon the validity of a contract, the annulment of which, had it been demanded in the petition, would have been beyond its jurisdiction, nevertheless the validity of the contract, in determining the sufficiency of the defense, would be considered as arising only incidentally in the case, and the court would not thereby be deprived of jurisdiction. A question arising only incidental- • ly in a case, whatever may be the value of the thing involved in the question thus arising, does not deprive the court before which it arises of jurisdiction. Heard v. Monroe Sand & Gravel Co., 165 La. 925, 116 So. 386.” Thus we discern, from the reasoning of the Supreme Court in the Richardson and Villemeur cases, that the test to be used in determining appellate jurisdiction under the Constitution is whether the thing demanded, or the recovery sought, by plaintiff involves an amount in excess of $2000. If it does not, then the Court of Appeal has jurisdiction, despite the fact that, as a necessary incident to the determination of the case, the court is required to pass upon the rights and liabilities of the parties under a contract involving an amount in excess of its appellate jurisdiction. In the instant case, however, we think that it is manifest that we are without jurisdiction as the reverse of the situation in the Richardson and Villemeur cases is presented. The principal relief sought by appellee here is for the recission of a contract to purchase real estate for the sum of $4200 and his claim for restoration of his deposit (an amount within our appellate jurisdiction) is merely an incident to the suit. Counsel for appellant infers in his brief that the Richardson case overrules, at least impliedly, the prior jurisprudence established by this court in Hunley v. Ascani, supra, and other cases above cited. We do not so view the decision in that case. On the contrary, the opinion states that “the cases cited by the Court of Appeal in support of its ruling in the present case seem to be distinguishable in that the validity of the contract for the sale of the property was the matter in dispute in those cases.” Thereafter, the court cites Hunley v. Ascani, and the other cases which we have cited above, and proceeds to distinguish them from .the situation there presented. Since we are of the opinion that the amount in controversy in this matter is beyond our appellate jurisdiction, the motion to dismiss will be sustained and the matter transferred to the Supreme Court in accordance with the provisions of Act No. 19 of 1912. For the reasons assigned, it is ordered, adjudged and decreed that this appeal be and it is transferred to the Supreme Court of Louisiana to be disposed of according to law; the transfer to be made within 60 days after this judgment becomes final and, if not so made, then the appeal is to be deemed dismissed; defendant and appellant to pay the costs of appeal in this court, the remaining costs to await the final determination of the matter. Appeal transferred to the Supreme Court.

TALIAFERRO, Judge. Plaintiff, on February 1, 1943, was employed by defendant, the Pelican Stores, a copartnership composed of Sam Schuster, Dave Schuster and Harold Lazarus, to manage its branch retail liquor business, under the trade name of Royal Liquor Store, located at 2244 Greenwood Road, in the City of Shreveport, Louisiana. His salary was fixed at $30 per week, and in addition, he was to receive 15 per cent of the profits of the business. - For cause, plaintiff was summarily discharged from his employment on December 23rd. He was then due a balance for his services, the exact amount of which he did not know. It required the posting of books and auditing of accounts to ascertain the exact amount due him. Plaintiff instituted this suit against his employer and its co-members to recover $1,126.50, alleged amount due him on salary and commission accounts, after deducting the sum of $3,108.97, paid to him and, as by him alleged, less “any other credits defendant may show they are entitled to receive.” He also sues for amount alleged to have been paid by him to defendant in connection with the operation of said business in excess of all amounts actually due by him to them, estimated at approximately $200. Additionally, he sues for $1,000 as attorney’s fee and for salary and commissions from the date of his discharge until payment thereof has been made to him as provided by Act No. 138 of 1936. He also alleged: “* * * that petitioner should have the right and is entitled to an accounting from the defendants, as well as the right to inspect in open court all of the books and records covering the operation of said business during the employment term.” Answering, the defendant admits that plaintiff is entitled to a full and complete accounting from it and to inspection of its records covering the period of his employment ; but defendant denies owing him any amount. In the alternative, defendant avers that plaintiff while in its employ embezzled large sums of its money, the full amount thereof being unknown to it, which amounts so embezzled it pleads in compensation and.set-off against any financial liability found to be due by it to him. Defendant avers that in direct violation of instructions to sell only one bottle of liquor to each customer he habitually sold liquors by the case to anyone who would buy. The following specific instances are named, to-wit: December 17-E. C. Tillery-4 cases-$336.00 December 22-Ed Kennedy-5 cases- 414.00 August 26-W. H. Pearson-3 cases- 298.18 $1,048.18 Total As to these three sales, defendant alleged that plaintiff received the price in each, failed to enter same in the records of the business and failed to pay' over same to defendant, but, on the contrary, embezzled the same. Defendants further alleged: “Your respondents now aver that the said plaintiff herein made numerous sales to persons, firms or corporations, from which sales he appropriated and embezzled a part or all of the proceeds thereof, and that your respondent is entitled to a full and complete accounting on the trial of this cause with reference to all such sales, and your respondents hereby plead in compensation and set off any amount the Court may find that your respondent owes to the plaintiff such amounts as may be found on the trial hereof to be owing to your respondents by the said Earl A. Foreman due to the amounts embezzled as above set forth. “And now assuming the position of plaintiff in reconvention, your respondents, in the further alternative, do hereby allege that the plaintiff herein, Earl A. Foreman, is indebted to them in the full sum of $1048.18, together with other amounts the exact amount being unknown to your respondents, and in this connection your respondents do allege the identical facts and allegations set forth in paragraphs 16 to 26, inclusive, hereinabove. “Further, as plaintiffs in reconvention, they aver that they are entitled to a full and complete accounting from the said Foreman as to all sales made by him not accounted for in his written reports furnished to your respondents, and to a full determination by the Court as to the exact amount embezzled or appropriated by the said Foreman during the course of his employment; and that they should have judgment herein ' for the amount above set forth, plus any additional amounts that may be discovered by such accounting, with legal interest on such amount from judicial demand until paid, and costs of this suit.” Defendants’ prayer is in consonance with the allegations of the answer and recon-ventional demand. There was judgment in favor of plaintiff for $1,061.49, with interest. There was judgment in favor of the defendant “ordering and commanding the said Earl A. Foreman to render an accounting unto said defendant within not more than thirty days from date hereof.” Defendant and its component members prosecute appeal from this judgment. Motion to Dismiss Appeal The appellee has moved to dismiss the appeal on the alleged ground that the money judgment in his favor “is acquiesced in and agreed to by the defendant and not subject to appeal.” The motion is without merit. Defendant did not in the true sense of the term confess judgment in favor of plaintiff; and the prosecution of this appeal from the judgment, as rendered, negatives any inference of acquiescence. To save time, expense, and the introduction of many records, defendant candidly admitted that it was due plaintiff a certain amount on commission account but strenuously denied, and persists therein to this time, that it would be due plaintiff any amount when and after he had rendered to it a faithful account of his stewardship as agent. This is not a confession of judgment from which no appeal may be prosecuted. The case of Rosenberg v. Derbes et al., 161 La. 1070, 109 So. 841, is controlling of the question. The motion to dismiss is overruled. Prior to trial of the case plaintiff was given ample opportunity to inspect defendant’s books and records to determine the amount due him on salary and commission accounts. He and his counsel availed themselves of this privilege. At the inception of trial defendant admitted that it was due plaintiff on commission account $1,102.22, less withholding tax of $40.73, or a net balance of $1,061.49. This is the amount for which judgment was rendered in favor of plaintiff. Said admission abbreviated materially the time consumed in trial of the case and obviated the introduction of much documentary proof and considerable testimony. Beyond this admission, plaintiff tendered only a small amount of evidence. Defendant sought by cross-examination of the plaintiff to substantiate its plea of compensation and its allegations concerning sales in case lots by him and his failure to account for the prices- received by him therefor. This effort was met with a plea of immunity; that is, that answers to the questions propounded might incriminate plaintiff. Section 11 of the Bill of Rights of the State Constitution, reading as follows, is relied upon: “No person shall be compelled to give evidence against himself in a criminal case or in any proceeding that may subject him to criminal prosecution, except as otherwise provided in this Constitution.” The court sustained this plea. Defendant was unable to elicit from plaintiff any information touching transactions and matters about which he alone possesses complete knowledge. When plaintiff was employed by defendant to manage its retail business at 2244 Greenwood Road, he was specifically instructed to sell only one bottle of liquor at a time to each customer. Defendant fixed -the price at which the various kinds of liquor should be sold and these prices were supposed to have been conspicuously posted. A shortage of liquor developed in the Shreveport area, as was true all over the country, in the latter part of 1942, and became more pronounced as time passed. However, defendant did not suffer from this shortage as others did, because at the beginning of the year 1943 it had on hand some 7,000 cases of whiskey. To its several retail establishments it rationed liquor in cases as their needs required. Defendant, by a system of proration, supplied from its wholesale department city and out of town customers. As the supply of liquor grew less the demand therefor increased and, naturally, the price went up. A" “black market” soon developed. The temptation to reap unconscionable profits was yielded to by many who had liquor for sale. Plaintiff quickly seized upon the opportunity to profit from this condition, and in violation of positive instructions from his employer began, during the month of his employment, to sell in case lots the stock allotted to his place of business, intended for the retail trade only. The prices he asked and received were materially in excess of those fixed by defendant prior to ceiling price fixing by the O. P. A., which went into effect September 1, 1943; and likewise his prices after that date were in excess of those fixed by the O. P. A. He wholly ignored all price fixing. Defendant, prior to September 1st, learned of plaintiff’s violation of instructions in the respect mentioned and closed the business for three weeks. Plaintiff is a nephew of Dave Schuster’s wife. He and a sister were taken from an orphanage in the City of New Orleans when very young and reared to manhood and womanhood by Mr. Schuster. They lived in his home and were treated as members of his family. Because of this relationship, and feeling that plaintiff had been sufficiently disciplined for his breach of duty, the business was reopened, but only for retail. Notwithstanding all this, plaintiff promptly resumed his former practice of selling liquor in case lots. So anxious was he to sell liquor in this manner he called prospective purchasers on the telephone, wrote letters to others and at times loaded his own car with cases and peddled same to persons he had good reason to believe would be interested in buying. Some of these were in business many miles from Shreveport. Defendant again learned of plaintiff’s action and he was finally discharged. When informed of the cause of dismissal, he rather contemptuously replied: “You cannot prove it on me”. Plaintiff personally ' consummated all sales of liquor in case lots. He religiously forbade the assistant manager to initiate or consummate such transactions, except under his personal direction. As a rule, he requested that the price be paid in cash, and this was quite often done. In those cases where checks were given, he invariably had the checks cashed and himself handled the money. He alone would run the cash or some portion of it through the mechanical cash register. In no instance did he run through the register at one time more than $30, regardless of the price received by him. The machine would register to $399. The result plaintiff desired to secure from this course of action is fairly obvious. He pursued the practice invariably until the time of his discharge. In addition to the three instances specifically alleged upon by defendant, aggregating sales to the amount of $1,048.18, defendant, over plaintiff’s objection, was allowed to introduce proof that established other sales by him in case lots, the total prices of which exceeded $2,000. The record of a sale was supposed to be made in this manner: The cash is deposited in the cash register and the amount thereof, by proper manipulation of the machine, is registered upon a strip of paper. The portion of the paper containing the amount of the sale is then torn off and preserved, and on it is written the quantity of liquor sold and the brand. At the close of business each day, from these various slips a recapitulation was made and delivered to the defendant the following morning. This method of business made it possible to know from day to day exactly the amount of cash taken in, the quantity and brands of liquor sold and the quantity and kinds supposedly on hand. Since plaintiff handled and rang up all sales in case lots it is easy to understand, as charged by defendant, that he could have retained from the price of each sale the amount received by him in excess of the posted price or the price fixed by the O. P. A. and yet his accounts would be in balance and superficially correct. It is shown that in at least one instance, and possibly in others, plaintiff, instead of immediately running the sale price through the cash register, deposited the amount in a small box near by. In such instance, and in others, he informed the assistant manager that he would ring up the amount at his leisure. It is also shown that he constantly kept a small note book about his person in which he recorded all sales in case lots. No one was allowed to view the entries in this book. It formed no part of the records of the business. It is apropos here to say that plaintiff’s entire course of conduct while wholesaling his employer’s goods was most unusual, irregular, and highly suspicious. No good business reason can be assigned for his actions. They are wholly irreconcilable with good faith and honesty of purpose. We are convinced that plaintiff’s action in wholesaling defendant’s liquor was prompted solely by the desire to profit personally. We lean to the opinion that he appropriated and embezzled only that part of the prices of the sales received by him, in excess of the posted or O. P. A. prices. He alone knows how much this amounted to. As a legal proposition there is no doubt that plaintiff is liable to defendant for the full price of all case sales of liquor made by him. The fact that the prices exceeded what defendant was willing to sell for is immaterial. Surely he is not entitled to pocket the difference, but should account for it. Articles 3004 and 3005 of the Civil Code, referring to the duty of an agent, lay down fundamental rules on the subject. They read: “He is obliged to render an account of his management, unless this obligation has been expressly dispensed with in his favor.” “He is bound to restore to his principal whatever he has received by virtue of his procuration, even should he have received, it unduly.” These articles of the Code simply announce rules which, so far as we are aware, prevail uniformly in all jurisdictions. The trust, the very foundation stone of agency, would be meaningless unless these rules were applicable thereto. No agent has the right to barter his principal’s goods, entrusted to him for sale or other disposition, at any price, and not account in full for his stewardship, unless by express agreement he is dispensed from so doing. Our own jurisprudence is replete with decisions which strictly uphold the principles embodied in said Codal articles. In Denson v. Stewart et al., 15 La.Ann. 456, the court held: “Where an agent, authorized to sell a thing for a particular price, sells it at a higher price, the surplus will belong to the principal, and the agent is entitled only to his stipulated commission.” It was held in Clement v. South Atlantic S. S. Line, 128 La. 399, 54 So. 920, that: “An agent must account to his principal for whatever he has received, even unduly, by virtue of his procuration. An agent of a ship broker must restore to his .principal all rebates or refunds' received by him, in the absence of an express agreement to the contrary. Custom cannot prevail against the provisions of law.” To the same effect are: Chinn v. Chinn, 22 La.Ann. 599; Skannal v. Stevenson, 23 La.Ann. 755; Texana Oil & Refining Co. v. Belchic, 150 La. 88, 90 So. 522. The common law on the subject is not unlike our own. See: Restatement of the Law, Agency, §§ 403 and 407; 2 Am.Juris. 215, § 268; 13 A.L.R. 907. The rule as expressed in American Jurisprudence, supra, reflecting the law of other states, reads: “It is well established that profits made and advantages gained by an agent in the execution of his agency belong to the principal, unless the parties themselves have otherwise agreed. In the absence of any agreement to the contrary between himself and his principal, an agent is not entitled to avail himself of any advantage that his position may give him to profit beyond the agreed compensation for his services. He will not be allowed to speculate for his gain in the subject-matter of the employment. * * Other cases and authorities could be cited but they would be merely cumulative of a rule about which there appears to be no dissent. It is quite obvious that without the testimony of or an accounting from the plaintiff, defendant will be largely, if not wholly, unable to establish the true amount plaintiff is due it. He sought the aid of a court of justice to determine and enforce his rights against the defendant, yet he is unwilling to provide that court with information necessary to render a just decision. He is willing to take all that which the law accords to him, but is unwilling, because of the fear of incrimination, to divulge to the court facts indispensable to the ends of justice. He has not come into court with clean hands; he seeks equity but is unwilling to do equity. He sought an accounting from defendant and got it, but is not willing to render one himself. This whole case, in reality, originally was for accountings. Such actions address themselves generally not only to the law side of the court, but as well’ to the equity side. 1 Am.Juris., verbo Accounts and Accounting, §§44 and 51. It is certain that when and if plaintiff renders to defendant a true and correct account of his gestión as its agent, such account will disclose an indebtedness by him to the defendant, probably of many hundred dollars. The amount of this indebtedness and that admitted by defendant as due to plaintiff will automatically, pro tan-to, operate as off-sets or compensation, the one against the other. Plaintiff urges his demand for payment of salary and commissions from date of his discharge, which, in his petition, he estimates at from $125 to $150 per week; and relies upon Act No. 150 of 1920, as amended by Act No. 138 of 1936. The admission upon which judgment was rendered in plaintiff’s favor does not include any part or portion of his salary. Plaintiff did not prove, in fact madq no effort to prove, that any part of his salary was unpaid. The above mentioned Act makes it the duty of an employer to pay to a discharged employee, on demand and within twenty-four hours after the discharge, the amount then due him under the terms of his employment; and provides further that if such payment is not made within said time the employer shall be liable to the employee for his full wages from time of discharge until payment thereof is made. We think the provisions of this Act have no application to the present case. It is true that when plaintiff was discharged defendant owed him a substantial amount on commission account. It is equally true that at the time plaintiff owed defendant a substantial amount, possibly more than was due him by defendant. Mutual accountings were necessary to determine who owed the greater amount. Ultimately, it may be revealed that plaintiff is defendant’s debtor. That the court below recognized defendant’s equitable right to an accounting on the part of plaintiff is evidenced by the fact that its judgment ordered plaintiff to render an accounting to defendant within a period of thirty days. However, no penalty was provided for failure to obey such order, and, as a result, defendant in all probability may become the victim of a gross injustice. In urging its right to relief on appeal, defendant contends that this court should order execution of plaintiff’s money judgment against defendant stayed until the accounting ordered by the judgment of the District Court has been duly made. While we fully appreciate the fact that such action on the part of this court would protect defendant’s equitable rights in the premises, nevertheless, we are of the opinion that such action would not best serve the ends of justice. To order a stay of execution would mean simply that this action would be held in suspension or abeyance for an indeterminate period, and, further than that, it might still be possible for the plaintiff to render an incomplete account, which, from a technical standpoint, might be construed as compliance with such judgment. Rather than take action which might serve only as a temporary solution or a partial determination, we choose to enter a judgment which will open the way to a final settlement of the equities existing between the parties to this litigation. As we have pointed out, this plaintiff, in seeking the aid of the civil courts of the State, in order to compel an accounting in law and equity on the part of defendant, for the purpose of determining his rights, has subjected himself, certainly by implication, and by operation of the rales of equity, if in no other manner, to the obligation of rendering an account on his own part to the defendant. To permit plaintiff to wrest an accounting from defendant under the guise of a civil proceeding at law, and to refuse defendant its concomitant right to an accounting from plaintiff, would be abhorrent and violative of all concepts of justice. It may be claimed that defendant’s right to a separate action against plaintiff would still be preserved. In view of the fact that it is asserted and not denied that a money judgment against plaintiff would be worthless, and, in further consideration of the fact that pleas in compensation, counter-claim and set off are not only permitted but favored for the specific purpose, among others, of obviating a multiplicity of suits, we are firm in the opinion that it is the duty of this court to enter a judgment which will provide a means for a final determination of the rights of the respective parties. For the reasons assigned, the judgment appealed from is set aside, and it is ordered that this cause be remanded to the First Judicial District Court in and for the Parish of Caddo, State of Louisiana, for further proceedings in accordance with this opinion. It is further ordered that plaintiff be, and he is hereby, ordered and commanded to render to defendant the accounting prayed for by defendant within a period of not more than thirty days from and after the date upon which this judgment shall become final, and, in the event of failure so to render such accounting within the period fixed, that plaintiff’s suit shall be dismissed at his cost. Plaintiff is taxed with the cost of this appeal. All other costs to await final determination of this suit.

McCALEB, Jr., Judge. Plaintiff Eugene J. Lillis, operating under the trade name Brandin Slate Company, is engaged in the contracting business in the city of New Orleans. The defendants, Jeff R. Anderson and Annie Anderson (a colored preacher and his wife), are the owners of the real property designated as No. 1411 South Dorgenois Street, New Orleans. On August 29, 1941, plaintiff, acting through one of his salesmen, entered into a written contract with the defendants wherein he agreed to malee certain alterations and improvements to defendants’ property for the price and sum of $900. The work to be done by the con tractor is set forth in the agreement as follows: “Cover all outer walls with Red Blend Brick Ford-v-Neer Siding. Repair floors in one room wherever necessary. Apply Beaverboard in three rooms. Repair both galleries. Reverend Anderson is to furnish the lumber for both galleries with the exception of the posts. Take out bulge in rear of house. Reverend Anderson is to furnish the lumber for the ceiling of porches. Also level entire house. No Paint. Cover the main roof of house with Ruberoid Asbestos Shingles. Also replace bad sheathing and rafters on roof wherever necessary. * * * ” On March 23, 1942, plaintiff brought this suit against defendants to recover the price of the contract. He alleged, in substance, that he had performed all of the work provided for by the written agreement; that he is and has been ready to deliver the building and improvements to defendants free and clear of all liens, etc.; that, despite this, defendants have refused to pay the price agreed upon; that they complained that the contract had not been complied with; that, upon receipt of this complaint, he requested that defendants furnish a list setting forth the particulars upon which the complaint was based; that defendants failed to furnish such list and that, although he contends that the contract has been fully complied with, he is ready and willing to do any and everything necessary to remedy any work which has not been completed according to the agreement. In answer to this petition, the defendants admitted the execution of the contract but denied any liability to plaintiff on the ground that he had utterly failed to perform the work required of him under the agreement. Defendants further filed a re-conventional demand claiming that, since plaintiff had failed to perform the contract in accordance with the stipulations contained therein, they had suffered mental anguish for which they are entitled to damages in the sum of $750; that plaintiff has damaged their property in the performance of the work to the extent of $200 and that they are also entitled to recover $200 for attorneys’ fees. On June 11, 1942, the case proceeded to trial in the District Court on the foregoing issues and, after the court had heard the evidence of three witnesses testifying for plaintiff, it concluded that the work under the contract had not been fully performed. In these circumstances, the judge adjourned the hearing and, apparently with the consent of the litigants and their counsel, appointed a building expert to examine the premises and the work done for the purpose of ascertaining what work would be necessary to complete the job. And, since plaintiff had offered to perform any work which might be found necessary by the building expert appointed by the court, the judge permitted him to complete the work under the supervision of the expert. In accordance with the judge’s order, the building expert, Mr. Richard McCarthy of New Orleans, who was appointed by the court, visited the premises and thereafter directed the plaintiff to perform certain additional work in compliance with his agreement. On August 31, 1942, the expert reported to the Court as follows: “Dear Judge: I contacted both of the above litigants and made a careful inspection of the building located at 1411 S. Dorgenois St. Upon my first visit there (August 12), found that the contract had not been complied with, as the work was not done in a proper manner. The floors had not been properly repaired and a bulge in the rear wall not removed. The siding on the upper side of the building was loose and there were other matters requiring attention. I felt, therefore, that the owners were justified in refusing to accept the work and resisting the payment on same. On August 16th I spoke with Mr. Lillis and Mr. Cook of the Brandin Slate Co. and they agreed to make all necessary corrections in an effort to comply with the contract to the satisfaction of all concerned. The floors have been repaired in all rooms. The loose siding has been re-nailed, the bulge of the back wall has been removed and in addition, 1x8 boards have been used on rear wall as cross braces which strengthen the building. Screens have been placed and other items have been completed. In consideration of the above, it is my opinion that the work is completed in accordance with the signed agreement, and the plaintiff in this case should be paid $900.00 in full, provided, of course, that the necessary financial arrangements will be made as outlined in the contract. Respectfully submitted, (Signed) Richard McCarthy.” The foregoing letter was followed by another letter of Mr. McCarthy dated September 9, 1942, reading as follows: “Dear Judge: — • For your further information, I believe that the Brandin Slate Co., have used every effort to correct many of the defects. In my opinion the building must have been in a run down condition before the work started. Same being out plumb and the old lumber sprung. A building being in the above condition any of this work done could not make a first class job. Some of the work done is not in a neat workmanlike manner, but as above stated it is hard to make a neat job, when this condition exist. The contractors have placed several new brick piers under house and rebuilt apprex 12. They have placed some new sills, the floors were repaired in all rooms. On the drop roof new sheathing and Roll roofing were renewed. All of these latter items are not called for in the contract. Therefore I am sure the work on this building has helped to increase the value of same. Respectfully submitted, (Signed) Richard McCarthy Co., Inc., By G. I. Taney.” Subsequently, on October 29, 1942, the trial of the case was resumed at which time considerable evidence was heard. Mr. McCarthy, the building expert, and his foreman, one Madison, took the stand and the court itself, together with the litigants, made an inspection of the premises. Mr. McCarthy’s evidence is in accord with the statements contained in his letters to the court, which are quoted hereinabove— that is, he finds that plaintiff has substantially performed the work required of him by the written agreement; that, although plaintiff has failed to level the house as he contracted to do, he has done the best that is possible in view of the previous dilapidated condition of the premises and that, while the work done cannot be regarded as a perfect job, the condition of the premises was such as to make a first-class result impossible. At this hearing, the defendant, Annie Anderson, testified that the salesman of plaintiff induced her and her husband to sign the contract for the repair work upon the representation that the job to be performed would place their home in a first-class condition and that they would have never agreed to permit plaintiff to do the work but for this representation. After hearing the evidence and viewing the premises, the judge was convinced that the work required of the contractor had been substantially performed and he accordingly gave judgment in plaintiff’s favor for the contract price. Defendants have appealed. A reading of the testimony taken at the trial, together with the findings of the building expert, Mr. McCarthy, has convinced us that plaintiff has used every effort to comply with the agreement he made with the defendants to repair the latter’s property. And we agree with the district judge that there has been a substantial performance of the undertaking. On the other hand, we cannot overlook the fact that plaintiff agreed to level the house and that he has failed to do so; that the work done is not a first-dass job and that it was clearly within the contemplation of the defendants, at the time the contract was signed, that the repairs to be made by plaintiff would place the property in good condition. Mr. McCarthy explains that the reason why a first-class job could not be done was due to the previous dilapidated condition of the premises and he says that plaintiff has done all that could be expected of him under the circumstances. Mr. McCarthy feels that plaintiff made a mistake, in view of the unsound condition of the premises, in agreeing to undertake the job as an experienced contractor would readily realize that a first-class job could not be accomplished. In testifying accordingly, Mr. McCarthy has, we think, put his finger upon the fundamental reason for this controversy — ■ for it seems clear that plaintiff led defendants to believe that the work could be satisfactorily performed. Annie Anderson testifies that plaintiff’s salesman, who induced the signing of the contract, represented that the repairs contemplated would put the house in first-class condition and plaintiff did not see fit to rebut this evidence. Moreover, the contract itself grants to plaintiff the privilege of taking a picture of the house before and after the work was done for advertising purposes. This provision confirms the testimony of Annie Anderson to the effect that plaintiff’s salesman represented that the repair work would greatly benefit the premises. The remarks of the trial judge, during his visit to the premises, indicate that it was his opinion that the results accomplished by plaintiff were about all that defendants could expect, in view of the fact that the building was very old and had originally been constructed faultily with cheap material. In view of this finding, it may be that the defendants .expected results which were out of proportion with the contractor’s undertaking. Still, we entertain no doubt that Annie Anderson’s testimony, regarding the glowing representations of plaintiff’s salesman, is true. But apart from this, since the evidence clearly shows that plaintiff has failed to level the house as he agreed to do, it is plain that the contract has not been entirely performed. The performance by plaintiff may be therefore regarded as substantial but not complete. Finding that plaintiff has not fully performed his engagement, the question arises as to the remedy afforded to defendants under such circumstances. Can they successfully resist liability for the fixed price of the work on the theory that the contract has not been completed in accordance with the agreement of the parties ? We think not. While it is the general rule that a person suing to recover on a commutative contract must allege and prove that he has fully performed his part of the engagement in order to recover, it is the well-settled jurisprudence of this state that this doctrine is without application to suits brought on building contracts. Article 2769 of the Civil Code provides: “If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his noncompliance with his contract.” The foregoing article has been construed by the courts to mean that, where a contractor sues on a building contract and it is shown that the work delivered is defective or unfinished, the contractor is, nonetheless, entitled to recover the contract price if the defendant fails to establish the damages he has sustained by reason of the contractor’s partial default. The remedy ©£ the owner in such cases is for a reduction in the price to an amount necessary to perfect or complete the work according to the terms of the contract. See Cairy v. Randolph, 6 La.Ann. 202; Babst v. Peritz, Orleans No. 7548 (unreported, see La. and So.Dig.); Berns & Bros. v. Reiss, 12 Orleans App. 126; Davidson v. McGrath, 6 La.App. 125; Reicke v. Bland, 7 La.App. 280; Peterson v. Peralta, 3 La.App. 516; Reimann Const. Co. v. Upton, La.App., 178 So. 528 and Merrill v. Marang, La.App., 198 So. 386. In Cairy v. Randolph, supra, the Supreme Court said: “But under the uniform jurisprudence of this court, a suit may be maintained upon a building contract, although the work be defective or unfinished, and the remedy of the defendant in such a case is for a reduction of the price agreed upon to the extent of the damages sustained by reason of the defective performance.” The decision in the Cairy case has been consistently followed in all of the later cases cited above. In the case at bar, the defendants have mistaken their remedy as their sole defense to the action is that, since plaintiff has not fully performed the contract in accordance with the intendment of the parties, no recovery can be permitted. In no part of their answer did they allege, nor did they attempt to prove, the damages which they have sustained by reason of plaintiff’s failure to level the house as stipulated in the contract. Therefore, we have no way of knowing how much it would cost to have the repairs completed and we cannot estimate the diminution in price to which the defendants might be entitled. It is true that the defendants have reconvened for damages but none of the items set forth in the demand can be sustained. The claim for $750 damages for mental anguish, inconvenience, etc., allegedly suffered by defendants as a result of the breach of contract cannot be recognized inasmuch as this type of damage is recoverable only in cases where the contract has for its object the gratification of some intellectual enjoyment, etc. See Article 1934 of the Civil Code. The claim for $200 allegedly representing damage done by plaintiff to defendants’ property, cannot be allowed as there is no proof whatever to sustain it. The third item of $200 for legal services is obviously not recoverable. For the reasons assigned, the judgment appealed from is affirmed. Affirmed.

WESTERFIELD, Judge. This is a suit under the compensation law in which the plaintiff, Peter M. Butz-man, Jr., claims to be totally and permanently disabled as a result of an accident which occurred while he was employed by the defendant, Delta Shipbuilding Company, Inc., on March 15, 1943. He sues his employer and its insurance carrier, the Fidelity & Casualty Company of New York for compensation at the rate of $20 per week for four hundred weeks. It is admitted by the defendants that plaintiff was injured in the course of his employment as a shipfitter and compensation was paid him for nineteen weeks and two days at the rate of.$20 per week, or a total of $396.67. Defendants, however, deny that the plaintiff was permanently or totally disabled and contend that he had completely recovered on July 29, 1943, when they ceased paying him compensation. There was judgment below in plaintiff’s favor and the defendants have appealed. Plaintiff has answered the appeal, asking that the judgment be amended in the respect that it suspends payment of compensation during the period for “which he has received or will continue to receive wages equal to or exceeding the amount of the compensation”. Butzman was injured when a scaffold on which he was standing collapsed causing him to fall and strike his leg on the edge of a tank. He suffered a comminuted fracture of the left leg. After the accident and after his discharge by the defend-, ants’ physicians, who declared that he was able to go back to work on July 29, 1943, Butzman resumed his former employment with the Delta Shipbuilding Company and worked for about ninety days when he concluded that he was unable to perform the duties of a shipfitter and asked for and obtained a transfer to the “burning department”, where he worked continuously until the time of the trial a year and three months later. Before the accident he earned an average weekly wage of $55.26, whereas after the accident his average weekly wage amounted to $69.70. Butz-man was also employed as a janitor in one of the Divisions of the Criminal Court where he earned $90 per month. It is the contention of plaintiff’s counsel that the earning capacity of plaintiff before and after the accident is of no moment because he is now unable to discharge the duties of his former occupation as a ship-fitter, which required him to climb ladders, carry weights and perform other strenuous hard work. As a matter of fact, plaintiff had never been a shipfitter before his employment by the defendant shipbuilding company a few days before the accident. He had previously been an ornamental iron worker and a ship painter. The section of the compensation law relative to total disability reads as follows: Section 8, par. 1(b). “For injury producing permanent total disability to do work of any * reasonable character, sixty-five per centum of wages during the period of disability, not, however, beyond four hundred weeks.” Act No. 242 of 1928, p. 357. This provision has been interpreted 'to mean work of the same or similar description to that which he was accustomed to perform. Black v. Louisiana Cent. Lumber Company, 161 La. 889, 109 So. 538; Knispel v. Gulf States Utilities Co., 174 La. 401, 141 So. 9; Yarbrough v. Great American Indemnity Company, La.App., 159 So. 438; Stieffel v. Valentine Sugars Co., 188 La. 1091, 179 So. 6; Ranatza v. Higgins Industries, La.App., 18 So.2d 202, now pending in the Supreme Court on writs of review, and authorities therein cited. As we have observed, Butzman was not specially fitted to perform the work of a shipfitter. As a matter of fact, he had only worked in that capacity for a very few days when he was injured and were it not for the holding in Stieffel v. Valentine Sugars Company, supra, we would be inclined to say that Butzman was not permanently and totally disabled within the meaning of the compensation law, but we read in the Stieffel case on page 1115 of 188 La., at page 14 of 179 So., an interpretation of the Yarbrough v. Great American Indemnity Company case (supra) as holding: “When an injured employee is unable to do work of the same description that he was employed to do when injured, his injury, in contemplation of law, is equal to total disability.” We do not understand the Yar-brough case as so holding, but we are mistaken because our Supreme Court has held otherwise and to the effect that when a workman is injured so that he is unable to perform the duties of the position he occupied when injured, he is totally and permanently disabled. Butzman, though a shipfitter for a very limited length of time, was employed as such when he was injured and we now turn to the testimony to ascertain whether it can be said that he is unable to discharge the duties of that position. Butzman himself says that while he was trying to accustom himself to the work after his injury during the ninety days that he resumed his position as shipfitter, he found that the pain in his leg was so intense that he could not bear it. Three doctors testified in the case — Drs. George Battalora and Joseph T. Scott, Jr., for the defendant and Dr. Edward H. Maurer for the plaintiff. There is no dispute as to the character of plaintiff’s injury. Butzman, according to Dr. Scott, who treated him, suffered a “comminuted fracture of the left tibia at the junction of the lower and middle third. .That is the main bone of the. left leg”. Dr. Scott expressed the opinion that after July 29t}\, 1943, when he discharged him, plaintiff could do hard strenuous work of the character which he was engaged in before the accident. Dr. Battalora, who did not examine Butz-man until February 10th, 1944, eleven months after the accident, found that the posture of the left foot was normal, the left leg rotated at the ankle about five degrees and that the left leg was three-quarters of an inch shorter with ten percent less dorsiflexion of left foot than the right foot. He examined him again on June 3rd, 1944, and testified as follows: “My opinion following this examination was the same as that expressed on February 10th, 1944, that this man has partial permanent disability of the left leg, rated at about 10%.” Dr. Maurer, who first saw the plaintiff on March 29th, 1944, about a year after the accident, and again three days before the trial, testified in answer to a question as to whether Butzman could perform the duties of a shipfitter, as follows: “No definitely not. He has to climb ladders, go on scaffolds, and if he’s off balance it would be a hazard to himself and his fellow workers. If he had a lifting occupation, where he had to stoop over and lift, which is the proper way to lift, he wouldn’t be able to balance himself; he would be likely to have an accident and fall. Then again his muscles would tire and fatigue. There’s some injury to the soft tissues.” We are of the opinion, as was the trial judge, that Butzman is unable to perform the work of a shipfitter in which occupation he was engaged at the time of the accident. The position of burner is one in which the laborer uses a torch of some kind to burn steel plates in conformity with some pattern and this work may be performed by the laborer while seated. As we have said, Butzman, so far as the evidence goes, was making more money after the accident than he was before, nevertheless, if he is totally disabled in contemplation of law from discharging the duties of the position he occupied when injured, the fact that he is earning more money in some other occupation is immaterial. In the Stieffel case the injured employee was a stenographer who was occasionally required to do clerical work and to act as messenger. His right hip was injured in an accident. The Court of Appeal for the First Circuit held: “Our conclusion is that the evidence shows that plaintiff is not incapacitated from doing any reasonable kind of work since his injury as he has and is now able to perform work similar to that which he was doing when injured. Most of the work of a stenographer is done with the mind, the hands, fingers, and body movements and postures. What little walking and manipulations of the lower limbs may be required in this kind of work, we believe plaintiff can do. If he were a carpenter, a mechanic, a logcutter, a painter, a ditch-digger, a farmer, a lineman, or if his means of earning a livelihood depended on any form of manual labor, we would have no hesitancy in reaching the conclusion that his disability affects his capacity to work and therefore his compensation should be controlled by subdivisions (a), (b) or (c), of said 8 (subdivisional).” (Permanent, total disability provisions). The Supreme Court, however, in considering the case on a writ of review, found the Court of Appeal to be in error and, as we have heretofore stated, held that Stieffel was totally incapacitated. The learned District Judge suspended the payment of compensation due Butzman during the period for “which he has received or will continue to receive wages equal to or exceeding the amount of the compensation”. Plaintiff claims that he is entitled to receive compensation from the date of his injury regardless of the wages paid him by his employer thereafter. In the case of Carlino v. United States Fidelity & Guaranty Company, on rehearing, 196 La. 400, 199 So. 228, 233, Chief Justice O’Niell, as the organ of the Court, said: “Our opinion is that a suit brought by an injured employee for compensation for a period during which he is paid wages equal to or exceeding in amount the compensation claimed would be unavailing, not on the ground of its being premature, but because there would be no cause or right of action for compensation fot that period. * * * Our opinion is that the plaintiff should not collect from the insurer any compensation for the period in which he was paid by the employer wages exceeding in amount the compensation which he was entitled to receive; and our ruling' is that the plaintiff shall not collect compensation for his disability as long as he continues to receive wages equal to or exceeding in amount the compensation which he is entitle to receive.” See, also, Holliday v. Martin Veneer Co., La., 20 So.2d 173, and Thornton v. E. I. du Pont de Nemours & Co., La., 21 So.2d 46. The plaintiff in this case was at the time of the trial still in the employ of the Delta Shipbuilding Company. In fact, ever since the accident, he has either received compensation at the maximum rate of $20 per week or has received a salary of about $70 a week. He is not entitled to any compensation as long as he is in the employ of the Delta Shipbuilding Company and receives as wages an amount equal to or in excess of $20 per week. The judgment appealed from might be misinterpreted. As it reads, it would indicate that Butzman could not receive compensation as long as he works for the Delta Shipbuilding Company or anyone else and receives wages equal to or in excess of the compensation due him. This is not the case, compensation should be suspended only so long as he is employed by the Delta Shipbuilding Company. With this slight amendment the judgment appealed from is affirmed. Affirmed.

McCALEB, Judge. On March 17, 1943, Mrs. Sarah Towles Reed, a permanent teacher of Fortier High School, in New Orleans, was tried and found guilty by the Orleans Parish School Board on charges of wilful neglect of duty in that she failed and refused to fill out a certain questionnaire which had been sent by the School Board to the teachers of New Orleans pursuant to a resolution of the Board, dated January 8, 1943. As a result of this finding, the Board confirmed a prior suspension of Mrs. Reed from duty without pay from February 24, 1943, the date upon which the charges against her were preferred, to March 18, 1943, and reinstated her as of thé latter date. Claiming that the charges made against her and the subsequent proceedings before the Orleans Parish School Board were illegal for the reason that the Board was without authority to require her to execute a questionnaire concerning her activities after school hours, Mrs. Reed brought the instant suit seeking to have the action of the School Board rescinded and annulled and that it be ordered to pay her the full sum of $200.52, representing her salary which was allegedly illegally withheld by it from- February 24th to March 17th 1943 inclusive. The defense of the School Board is that the action taken by it was legal and in conformity with the provisions of Act No. 79 of 1936, which amended and reenacted Section 66 of Act No. 100 of 1922, generally referred to as the “Teachers’ Tenure Law”; that it had the authority and right, under Act No. 100 of 1922, to pass the resolution requiring school teachers of New Orleans to answer a questionnaire concerning the time which they were devoting after school hours to War work; that plaintiff wilfully refused to supply the information requested by the questionnaire and that, as a result thereof and after a public hearing, she was found guilty and suspended without pay for the time as alleged by her in her petition. It further averred that plaintiff’s demeanor toward it and its members has long been, and still is, hostile and recalcitrant and, in support of this charge, it set forth in detail various offenses allegedly committed by plaintiff in the past. After a trial on the foregoing issues, the judge of the District Court rejected plaintiff’s demand. She has appealed. Although the record in the case is quite voluminous, the issue presented for determination is a most narrow one. We say this because the vast preponderance of evidence submitted at the trial below exhibits that plaintiff not only neglected to supply the information sought to be obtained through the medium of the questionnaire which was submitted to her but that she actively and steadfastly refused to do so on the ground that the Board did not have the authority to inquire into her activities after school hours. The District Judge so found and we fully concur in his ruling. Thus, the question to be decided is whether thé School Board had the right to require that the teachers of the New Orleans Public School System give it the information it sought to obtain by means of the questionnaire. In approaching a solution of this problem, it is important to ascertain at the outset whether the resolution of the Board of January 8, 1943, which provided for the issuance of the questionnaire, was founded on just cause. The circumstances surrounding the adoption of the resolution are shown by the record to be, in substance, as follows: The United States Department of Education in Washington, in an effort to better prepare the youth of the land for the rigors of the present global War, had requested that all public school systems throughout the country emphasize the teaching of mathematics and science to a higher degree than ever before and also that courses in physical education be intensified. In order to comply with this request, the State Board of Education found it necessary to require that science be taught in the high schools of the State five times a week instead of three and that, inasmuch as the War Policy Commission of the Department of Education in Washington had suggested that physical education be increased from five hours to ten hours per week as outlined in the “Victory Corps” curriculum, the teaching of physical culture should be augmented. Taking cognizance of the recommendations of the Federal Government as approved by the State Board of Education, it was proposed by the Orleans Parish School Board, at its regular meeting on January 8, 1943, that the school hours in New Orleans be lengthened in order to accomplish this intensified program. Plaintiff, who is a leader of one of the teachers’ associations in New Orleans, appeared at this meeting of the School Board and, with other teachers, opposed the proposal to lengthen the school hours on the ground that the increase of hours would interfere with War work in which many of the teachers were engaged. Upon stating this objection, plaintiff was asked by one of the members of the School Board whether she had any idea as to the number of teachers then engaged in War work, either voluntary or remunerative. To this query, plaintiff replied that she did not have information as to the number of persons so engaged nor the hours during which the War work was performed but that this information could be easily obtained. At this point of the discussion, Mr. A. J. Tete, Superintendent of the School Board suggested that a poll be conducted among the teachers of the New Orleans School System to ascertain how many of them were engaged in War work, the nature thereof and the hours during which it was done. In accordance with this suggestion, the Board adopted a resolution directing the Superintendent to prepare and cause questionnaires to be issued to each and every teacher in the New Orleans Public School System requesting information concerning their activities in War work after school hours. Thereafter, the questionnaire was prepared and sent out by the Superintendent of the Board to all teachers in New Orleans, which number approximately 2000. Of this number, plaintiff was one of the few who failed and neglected to fill in or otherwise supply the information requested. The questionnaires, which are entitled “War Work Questionnaire”, were addressed to the principals of the various schools in New Orleans and directed the principals to distribute them to the members of their faculties and return the completed forms to the Superintendent not later than February 4, 1943. Each questionnaire further states “Work referred to is other than that with School Board” followed by a heading entitled “Work for which remuneration is received”, with blanks to be filled in with employer’s name and address, the hours before and after school in which the work is done, services rendered or type of duties performed and a further space for “Remarks or further explanation”. Following this is a heading “Volunteer Work” with blanks for the name of organization and hours, etc. in which such work is done. The main contention of plaintiff is that the School Board was without power or right to require her to fill out the above ■described questionnaire because the information sought refers solely to matters of a private nature respecting her activities after school hours, as to which the board is neither Concerned nor interested. If the School Board had attempted to require plaintiff to account to it for the use of her time after her duties at school were ended, with the purpose and design of harassing her or otherwise prying into her private life, there would be some basis for the proposition she has advanced. In 'such case, we would unhesitatingly say that the resolution of the Board providing for the issuance of the questionnaire was unreasonable and further that the requirement would be an undue invasion of her right of privacy. But we cannot regard that the questionnaire in the instant case sought to inquire into plaintiff’s private affairs after school hours or that the information requested therein invaded her privacy in any respect. On the contrary, the issuance of the questionnaire not only had direct relation to school work (or a proposal to intensify the school curriculum to conform to the War effort) but it emanated as a consequence of the protest of plaintiff and others that it would be unfair to lengthen school hours for the reason that the accelerated program might interfere with the War work of the teachers. Under these circumstances, it was wholly logical and right for the Board to investigate the nature of War work being performed by its teachers prior to the adoption of the proposed program ■ to comply with the recommendations of the Federal Government and the State Board of Education. The questionnaire does not seek to elicit information concerning the use made by plaintiff of her leisure hours except to the extent of requiring her and others to furnish facts respecting the War work done by them in order that the program for the teaching of the youth of New Orleans might be revised so as not to conflict therewith. Hence, since it is manifest that the resolution of the School Board was a most reasonable one, it is difficult to understand why plaintiff would refuse to give the information sought to be elicited by the questionnaire. The record shows that plaintiff is a highly educated and intelligent lady and that she has, by her untiring efforts on behalf of the school teachers of the State during the last thirty years, attained prominence and respect in the community. But the attitude of defiance of authority displayed by her in the instant matter cannot be approved or condoned. We also entertain no doubt whatever concerning the power of the School Board to adopt and enforce the resolution under attack. Act No. 100 of 1922, which creates the State Board of Education and the Parish School Boards and defines their respective duties and powers, specificially grants to each School Board, by Section 20, authority “to make such rules and regulations for its own government, not inconsistent with law or with the regulations of the Louisiana State Board of Education, as it may deem proper”, and Section 57 thereof declares "teachers shall faithfully enforce the school course of study and the regulations prescribed in pursuance of law; and if any teacher shall wilfully refuse or neglect to comply with such requirements, the parish superintendent shall withhold the salary of such teacher until the teacher properly performs his or her duties in such respect”. In the recent case of State ex rel. Rathe v. Jefferson Parish School Board, 206 La. 317, 19 So.2d 153, 159, the Supreme Court, in speaking of Act No. 100 of 1922, said: “Parish School Boards have the authority to establish public schools and provide for their maintenance and operation and are entrusted with the administrative and executive functions in conducting the public school system in the parish. The Board has the authority to employ, suspend and discharge teachers and it is its duty to supervise their work.” However, counsel for plaintiff, relying upon the provisions of the Teachers’ Tenure Law (Acts Nos. 58 and 79 of 1936), seem to believe that that law has limited or curtailed the authority of the various School Boards over permanent teachers. The Teachers’ Tenure Law, as stated by the Court of Appeal for the Second Circuit in Andrews v. Union Parish School Board, La.App., 184 So. 574, 578, was designed to accomplish a laudable purpose — that is, it was intended to protect the worthy instructor's of our Public Schools from “enforced yielding to the political preferences of those theretofore having the power to grant or withhold employment to them; and to vouchsafe to such teachers employment, after a long term of satisfactory service to the public, regardless of the •vicissitudes of politics or the likes or dislikes of those charged with the administration of school affairs”. To this end, it was provided that no permanent teacher shall be removed from office except on written and signed charges of immorality, incompetency or wilful neglect of duty and then only if found guilty after a hearing by the School Board. And, in order to make certain that the teachers of our public school system would be relieved of any undue pressure or coercion on the part of the School Board, it was further stipulated that the Board' would have no authority to make rules and regulations which might impair or nullify the provisions of the statute. But the Teachers’ Tenure Law does not dislodge or in anywise restrict the general authority of the School Board to-supervise its teachers in respect to the establishment or revision of the school curriculum or limit its right to pass reasonable-rules and regulations in aid of its administrative power. The Act gives to the teachers of our Public School System tenure in-office and arms the permanent teacher with a shield which protects him against discharge, suspension or demotion for causes-other than those provided by the statute. On the other hand, it was never intended by the Legislature that the statute could be employed as a weapon in the hands of the school teacher for the purpose of frustrating or defeating the function for which the School Boards are created. Nor can it be resorted to in aid and defense of those who ignore, neglect or refuse to obey the mandates of the Board which are passed in pursuance of its administrative authority. Plaintiff was not discriminated' against in the instant case for, while it is-shown that a few other teachers did not fill out the questionnaire, information concerning the War work of those teachers was actually supplied by their principals and the completed forms returned to the Superintendent. In truth, plaintiff stands alone as the only teacher in the City of New Orleans who militantly refused to give the information requested. And, even if it were otherwise, the fact that others failed to answer the questionnaire would afford little excuse for' plaintiff’s behavior except that 'such fact could be given consideration in determining whether the action taken by the Board was discriminatory. In this connection, we may say that we find nothing in the conduct, either of the Board or its Superintendent, which would warrant a conclusion that their action was guided by impure motives. Counsel also contend that, since the Board reinstated plaintiff, it recognized that her suspension was illegal and that it is well established in our jurisprudence that, where a teacher is subsequently reinstated after suspension, she is entitled to recover her salary for the period of the suspension. The cases of Williams v. Liv ingston Parish School Board, La.App., 191 So. 143, and Kundert v. Jefferson Parish School Board, 191 La. 102, 184 So. 555, are cited in support of this proposition. The point is without merit. The cases relied upon are inapposite for the reason that the teachers involved in those matters had been illegally discharged and, consequently, it was held that reinstatement automatically entitled them to the salary which they lost during the period of suspension, provided that the claim for reinstatement has been asserted within a reasonable time. In the instant case, the suspension of plaintiff was just and proper as the Board felt that her act in refusing to fill out the questionnaire was not such a violation of her duty as to require an absolute dismissal. The fact that plaintiff received leniency from the Board and was reinstated to her former position cannot be used as an argument for restoration of her salary during the period of suspension. For the reasons assigned, the judgment appealed from is affirmed. Affirmed.

O’NIELL, Chief Justice. The plaintiff is appealing from a judgment dismissing his suit to collect a bill of $2,150 for professional services rendered by him as physician and surgeon. The services extended over a period of ten months and included several successful major operations, made necessary by an accident that injured the defendant critically- Soon after he recovered from his injuries, the defendant, Hunnewell, filed a petition in bankruptcy and listed the plaintiff, Dr. Irwin, as a creditor for the $2,150, and was discharged. Dr. Irwin claims that, in three separate instances, subsequent to the bankruptcy proceedings, Hunnewell acknowledged the debt and, directly or by necessary implication, promised to pay it. The doctor avers, specifically, that Hunnewell, after his discharge in bankruptcy, sent a message by a friend, Griffin C. Connell, to Dr. John F. Oakley, who was then the full-time assistant of Dr. Irwin, to inform him that he, Hunnewell, acknowledged his obligation to pay Dr. Irwin the $2,150, and promised that he would pay it, notwithstanding his discharge in bankruptcy. The doctor avers that similar promises were made by Hunne-well in two letters addressed to Dr. Irwin, one on the 1st and the other on the 5th day of May, a few months after the discharge in bankruptcy. The only question in the case is whether there was a definite promise made by Hunnewell to pay the debt, either in the message which he sent by his friend Connell to Dr. Oakley, or in either of the letters addressed to Dr. Irwin. For it is well settled and is conceded that a promise to pay a debt from which the debtor has been discharged in a bankruptcy proceeding, to be effective, must be direct and definite. A mere acknowledgment of such a debt, with an expression of intention to pay it at some indefinite time, is not an enforceable obligation. Bach v. Cohn, 3 La.Ann. 101; Beck v. Howard, 3 La.Ann. 501; Linton v. Stanton, 4 La.Ann. 401; Bartlett v. Peck, 5 La.Ann. 669; Glenn v. Dunbar’s Adm’x, 10 La.Ann. 253; Collier on Bankruptcy, 13th Ed., Vol. 1, § 17, p. 643; Gilbert’s Collier on Bankruptcy, 4th Ed., § 17, p. 385; 8 C.J.S., Bankruptcy, § 583, p. 1571; 6 Am.Jur., Bankruptcy, § 532, p. 832; Allen & Co. v. Ferguson, 18 Wall. 1, 85 U.S. 1, 21 L.Ed. 854. The judge of the civil district court found that there was no definite promise on the part of Hunnewell, made either directly or by necessary implication, in the message which Hunnewell sent by Connell to Dr. Oakley, or in either of the letters which Hunnewell wrote to Dr. Irwin. And we concur in that finding. Hunnewell, Connell and Dr. Oakley all testified that their recollection was that the message which Hunnewell sent by Connell to Dr. Oakley was sent before and in anticipation of Hunnewell’s filing a petition in bankruptcy, and that Hunnewell’s purpose in sending the message to Dr. Oakley was to assure Dr. Irwin that, notwithstanding it was necessary to list him as a creditor for the $2,150, he, Hunne-well, intended to pay the debt after receiving his discharge in bankruptcy. Of course, if the message was sent before Hunnewell filed his petition in bankruptcy, the message could not have any binding effect now, even if it did constitute a definite promise to pay the debt. Dr. Irwin testified that the message was delivered to him promptly by Dr. Oakley and that it was delivered after Hunnewell obtained his discharge in bankruptcy. In the letter which Hunnewell wrote to Dr. Erwin on May 5th he referred to the message which he had sent by Connell to Dr. Oakley as if it had been sent in December, which would have been about a month after Hunnewell filed his petition in bankruptcy. The only way in which that admission in Hunnewell’s letter of May 5th could be reconciled with his testimony, or with that of Connell and Dr. Oakley, with reference to the date on which Hunnewell sent the message to Dr. Oakley, would be to assume that Hunnewell, in his letter of May 5th, was mistaken in referring to the date of his sending the message as being in December. Assuming, however, that Hunne-well’s sending of the message by Connell to Dr. Oakley was subsequent to the date of Hunnewell’s discharge in bankruptcy, we find that there was no definite promise in the message, either expressed or implied. Connell testified that the only message that Hunnewell asked him to convey to Dr. Oakley was that he, Hunnewell, felt that he owed his life to Dr. Oakley, and that while it was necessary for him to include Dr. Oakley’s bill in his list of liabilities he intended as soon as possible to pay the bill. Connell testified also that Hunnewell did not say anything about paying Dr. Irwin, or request Connell to deliver any message to Dr. Irwin. We assume that, in referring to the bill of Dr. Oakley, Connell had reference to the bill of Dr. Irwin, because Dr. Oakley, being a full-time assistant of. Dr. Irwin, received a regular salary from Dr. Irwin for his services, and did not render a bill for the services which he rendered as Dr. Irwin’s assistant. Dr. Oakley testified, as a witness for Dr. Irwin, that his recollection of the message which Connell delivered was that Hunnewell had gotten into some financial difficulties and had gone into bankruptcy — or contemplated going into bankruptcy — “but that the bill for Dr. Irwin’s services was to be taken care of”. That was not a definite promise to pay the debt, — certainly not a promise to pay it within any specified time. Dr. Irwin testified that the message delivered to him by Dr. Oakley was, in effect, that he, Dr. Irwin, “should have no worry' — that the bankruptcy proceedings would have nothing to do with the payment of the account — that it would be paid — that he [Hunnewell] had found it necessary to go into bankruptcy”. Dr. Irwin admitted that Dr. Oakley did not tell him that Hunnewell had promised to pay a certain or definite sum, or to pay any sum within a specified time. Dr. Irwin admitted also that he never asked Hunnewell to confirm the message delivered by Dr. Oakley. Hunnewell’s letter to Dr. Irwin, dated May 1st — or the part which is quoted and relied upon by counsel for Dr. Irwin— reads as follows: “Dear Doctor Irwin: Please don’t put me on the list of people you don’t speak to because so many months, have elapsed or may yet elapse without my having made a start on your bill. Since September [two months before the filing of the petition in bankruptcy] I have been working on my deficit with the Tea Company [Hunnewell’s employer], and since that is only a matter of deduction for them my salary has been chiefly a series of receipts. It has come down from eight hundred to about two fifty and I begin to feel as tho I were getting somewhere. These things seem to come in bunches — and with my other little woes I’ve acquired some of my family’s. My father is in the building supply business and since January has been without any income whatever. Mother took on a job in New Rochelle as a librarian and while all that will soon clear up — I hope — it’s been rather a hard winter. “I can only say that after the Tea Company you come first, and trust that you wont object to being anything but first. You don’t remember asking me what difference it made if it took me the rest of my life to pay for one bad evening? I didn’t think you’d be so liberal!” Hunnewell’s reminder of Dr. Irwin’s having asked him what difference it would make if it took him the rest of his life to pay for one bad evening is explained by the fact that it was in consequence of one bad evening- — on a Christmas night— that Hunnewell fell from a second-story gallery and thereby caused the injuries which resulted in the doctor’s bill for $2,-150. Hunnewell’s concluding statement, that he didn’t think Dr. Irwin would “be so liberal”, savors of sarcasm. The whole tone of the letter is merely a gloomy ex-plantation of Hunnewell’s failure — because of his financial inability — to commence paying Dr. Irwin’s bill. The nearest approach to a promise to pay the bill is in the second paragraph of the letter, where Hunnewell states that, after he will have finished paying the debt due to his employer, Dr Irwin will “come first” — in the order of payment of the other creditors. But that was not a definite promise to pay the claim of Dr. Irwin — much less to pay it within a certain or specified time. In the other letter relied upon by Dr. Irwin — dated May 5th — Hunnewell complained that the doctor had informed his callers “of my debt to you”; but the debt was referred to afterwards in the same letter as a moral obligation. Hunnewell complained also that the bill “was entirely out of proportion to” his means. He affirmed that his “intentions were good and the delay was unavoidable”. And then in the letter Hunnewell offered to turn over to Dr. Irwin a life insurance policy for $3,000, naming the doctor as beneficiary, and to pay the premiums, in lieu of payments on the debt; which offer was never accepted by Dr. Irwin. The letter reads as follows: “Doctor Irwin: It was a rather remarkable coincidence that only one day after I wrote you regarding what I have considered a perfectly reasonable delay in settling your bill, that I learned, thru people who fortunately know my side of the case, the method you have adopted to let your callers know of my debt to you. I refer to the data you have had on your desk — and the statements you have apparently made concerning my intention not to pay your bill —in particular your having said that I went thru bankruptcy to avoid paying the bill. “I went to considerable trouble and sat outside your office for an hour and fifteen minutes in December, to see you and explain the bankruptcy angle, and finally had to ask a friend of Dr. Oakley’s to explain the matter to him, and assure him that my bankruptcy had absolutely no bearing on your bill insofar as my moral sense of the obligation was concerned. The question of my indebtedness to you — that is, the amount of it, is certainly debatable. You have had your ideas on the subject and I have mine— and there is notching to be gained by a further discussion of it — but I still feel that it was entirely out of proportion to what I have, or will have for sometime. I have always felt that Dr. Mcllhenny’s bill was a reflection of his ideas of the subject, and I am too familiar with things of the sort here and in New York not to realize that I was being asked too much. “You probably know what my reaction was when I was told of your comments— and yet, regardless of what you have said or how many'people you have told your story to, I would still feel that I owed you a great deal for what you did. Lots of people would not feel quite that way, because the damage once done is never fully repaired — and if I paid your bill in full, most of the people who were told that I had ducked it would never hear of its being paid. I have no very great moral sense, and certainly no social position that might be injured, so I am not as upset as I suppose I should be. I object chiefly because my intentions were good and the delay was unavoidable. “I have foregone a great many things in order to get in the clear, and, had you been more reasonable in your charges and in your attitude, I think we would both be better off. I am not going to be nearly as concerned in the matter as I have been,~ancl you can't blame me for feeling that way. “I’ll do this much if you want to have something concrete. My balance with Mr. Peregoy and the Company will not be cleared until August. If you don’t want to wait until then and take your chances, I will make over to you, as beneficiary, a life insurance policy, in Travelers, for three thousand dollars, and agree to maintain the premiums in lieu of any future payments, with only two exceptions to the contract. First, that, if I am disabled temporarily or permanently, I benefit by the policy as it stands. Second, that if you collect the policy (and wouldn’t that give you a ‘big kick’) you will give Dr. Fenno two hundred and fifty dollars. You have something to gain and nothing to lose if you care to accept the policy, and no one is in a better position than you to know how good your chances are of coming out ahead. You can think it over and drop me a line if you care to; at least the idea is slightly original and might be quite profitable.” Dr. Irwin testified that he did not accept Hunnewell’s offer concerning the life insurance, or answer the letter of May 5th, because — as the doctor said — he was willing to wait the time stated in the letter, and take his chances that Hunnewell would pay the debt. In that connection the doctor testified: "The mere fact that I didn’t reply was sufficient information to him [Hunnewell] that I was willing to await the beginning of the payments after August”. Hence no obligation arose from Hunnewell’s offer to turn over to Dr. Irwin the policy of insurance. The law on this subject is the same in Louisiana as it is in the other states. The obligation of a bankrupt to pay a debt from which he has been discharged is only a moral obligation — or what the Civil Code terms a natural obligation— defined in article 1757 as “one which can not be enforced by action, but which is binding on the party who makes it, in conscience and according to natural justice.” According to article 1759 — numbered 1752 in the Code of 1825 — although such an obligation cannot be enforced, nevertheless “A natural obligation is a sufficient consideration for a new contract.” A mere acknowledgment of such an obligation, of course, is not a new contract. In fact, the only moral obligation of a bankrupt to pay a debt from which he has been discharged is the obligation to pay it if he ever becomes financially able to pay it. In Bach v. Cohn, 3 La.Ann. 101, in 1848, it was held that a debtor who was discharged from his debts under the bankrupt act of Congress of August 19, 1841, 5 Stat. 440, was “still bound in the forum of conscience”, and that his obligation would be a sufficient consideration for a new promise, under article 1752 of the Civil Code of 1825, but that there could “be no .legal obligation to pay such debts without a new agreement.” The court compared the act of Congress with the bankrupt statute of England, and, referring to the decisions of the English courts to ascertain the legal effect of a discharge in bankruptcy, declared : “Upon an examination of them [the decisions of the English courts] it will be found that the effect of the certificate [of discharge] may-be avoided by a new contract, entered into bona fide by the bankrupt after his discharge; and that, as the debt, notwithstanding the legal discharge, is due in foro conscientiae, the moral duty is deemed a sufficient consideration to support the new promise. But we have met with no case in the English authorities in which anything less was deemed sufficient in avoidance, than direct proof of a new contract.” To the same effect was the decision in Beck v. Howard, 3 La.Ann. 501. And from Linton v. Stanton, 4 La.Ann. 401, we quote: “It has been often held that a new promise to pay a debt discharged by certificate, must be express, distinct, and unequivocal. The intention of the bankrupt to bind himself must be clear.” In Bartlett v. Peck, 5 La.Ann. 669, it was held that the following expression in a letter written by the bankrupt, Peck, to the plaintiff, Bartlett, after Peck was discharged in the bankruptcy proceeding, was not sufficient to sustain a judgment against Peck — viz: “I expect to pay you as fast as I can in money, not in property.” In the opinion the court declared: “The discharge in bankruptcy operates the release of the debt, as prescription does; and a subsequent promise to pay is a new obligation of which the preexisting debt is only the consideration. The obligation must, therefore, clearly result from the words used, or it cannot be enforced.” In Glenn v. Dunbar’s Adm’x, 10 La.Ann. 253, one of the reasons for holding that a letter written by the bankrupt to the creditor, Glenn, did not constitute such a promise as to sustain a judgment against the bankrupt’s estate was that it was neither alleged nor proved that the bankrupt’s affairs “so prospered after the letter as to give him the ability to pay”. In the present case the evidence leaves no doubt — and there seems to be no dispute about it — that Hunnewell has never been financially able to pay the claim of Dr. Irwin. In Collier on Bankruptcy, 13th Ed., Vol. 1) § 17, p. 643, and in Gilbert’s edition of the same work, 4th Ed., § 17, p. 385, the rule is stated thus: “Whether oral or in writing, the promise must be definite, express, distinct, and unambiguous”. In 8 C.J.S., Bankruptcy, § 583, p. 1571, the rule is stated thus: “In order to revive a liability on a debt discharged in bánkruptcy or to create a new enforceable obligation, there must be an express promise to pay the specific debt, made to the creditor or his agent, and while no particular form of language is necessary, to constitute such a new promise there must be a clear, distinct, and unequivocal recognition and renewal of the debt as a binding obligation, anything short thereof being insufficient, as, for example, the mere acknowledgment of the discharged debt, or the expression of hope, desire, expectation, or intention to pay or revive the same.” It is not necessary to decide now whether a verbal promise to pay the discharged debt would be enforceable if Hunnewell had given such a promise directly and unequivocally in the message which he sent by Connell to Dr. Oakley, because no such direct or unequivocal promise was given in the verbal message. The rule is stated in 6 Am.Jur., Bankruptcy, § 532, p. 832, thus: “Unless otherwise provided by statute, an enforceable promise to pay a discharged debt may be made orally. The promise must, however, be either express or directly implied in the terms used; it cannot be implied simply from conduct recognizing the debt, for example, from a payment on account of either principal or interest. No particular form of words need be used provided the promise is clear, distinct, and unequivocal, and is constituted of words which in their natural import identify the debt and express a present intention on the part of the bankrupt to bind himself to its payment. A simple acknowledgment of the justness of a debt and of its present existence as a debt formerly contracted and now unpaid, or the expression of a hope, desire, expectation, or intention to pay, is not sufficient. Nor is the effect of a discharge avoided by a promise to do something other than pay the discharged debt.” And, with reference now to the unaccepted offer of Hunnewell to turn over to Dr. Irwin the $3,000 life insurance policy, we quote the following paragraph from the same section, p. 533 of 6 Am. Jur., — thus: “A mere offer or proposal to make a new contract for the payment of the discharged debt does not avoid the effect of the discharge, although an enforceable contract may be created by the creditor’s acceptance of the offer.” In Allen & Co. v. Ferguson, 18 Wall. 1, 85 U.S. 1, 21 L.Ed. 854, the rule is stated and illustrated thus: “The promise by which a debt discharged in bankruptcy is revived must be clear, distinct and unequivocal. “A promise inferred from the following words in the letter of the defendant, ‘Be satisfied; I intend to pay all my just debts; all will be right betwixt me and my just creditors,’ is not a promise to pay plaintiff’s debt.” Our conclusion is that the judgment appealed from is correct. The judgment is affirmed.

FOURNET, Justice. The plaintiffs, Edwin V. Felder and Leo Miscar, are prosecuting this appeal from the judgment of the lower court dismissing, under exceptions of no cause and no right of action filed by the Police Jury of Livingston Parish, their .suit to have declared null, void, and of no effect the local option election held in Ward 2 of the said parish and the ordinance passed pursuant thereto prohibiting and making unlawful the selling of or otherwisé trafficking in alcoholic and intoxicating liquors. There is nothing in the record to show on what ground the exceptions were based as the grounds are not stated in the exceptions themselves and the trial judge did not render an opinion or assign any written reasons for his dismissal of the suit. However, we find from the statement of counsel for the Police Jury in his brief that “The exceptions of no cause and no right of action filed were based on the primary principle that a complainant must allege, in any election contest, that had it not been for the fraud or irregularities complained of the result would have been different.” While the petition is somewhat lengthy and inartistically drawn, we think the well pleaded facts, which, for the purpose of disposing of these exceptions, must be accepted as true, are as follows: That the plaintiffs, residents and taxpayers of Ward 2 of Livingston Parish, are now and have been for a number of years engaged in the business of selling or otherwise dealing in alcoholic and intoxicating liquors; that an election was held in said ward on October 19, 1943, for the purpose of determining whether or not the business of manufacturing, selling, or dealing in or with liquor .should be licensed or permitted in Ward 2 under the resolution adopted by the Police Jury at its regular meeting held on September 8, 1943, calling such election upon a petition certified by the Registrar of Voters for Livingston Parish as containing the signatures of more than 25% of the qualified electors of the said ward; that this election and the ordinance adopted pur- suaht to the results thereof are null and void for the following reasons: (1) The petition upon which the Police Jury acted did not contain the requisite 25% of the qualified electors of the ward because many names were duplicated, many were signed by persons other than those purporting to sign it, and a number of the persons purporting to sign it were dead. . (2) No notice of the meeting at which this petition was to be considered was given to the public so that formal protest might be made by those opposing it. (3) The Police Jury, in adopting the resolution ordering the election in conformity with the provisions of' Act No. 17 of the First Extraordinary Session of the Legislature for 1935, failed to designate what state legislature was intended. (4) That the election was fraudulently and illegally conducted because it was conducted in violation of law and contrary to the express provisions of the resolution calling the election wherein the Secretary of the Police Jury was directed to furnish the Chairman of the Board of Supervisors of Livingston Parish with a certified copy of the resolution and that board was requested to appoint the necessary commissioners and other election officials in conformity with the law for (a) there was an agreement between the Chairman of the Board of Supervisors, the Secretary of the Police Jury, and the leader of the prohibition movement to select commissioners favoring prohibition, .such election officials being selected by the leaders of the prohibition movement at a secret meeting and handed to the Chairman of the Board of Supervisors who, without calling a meeting of the board or otherwise obtaining the approval of the other members thereof, appointed the officials thus selected to conduct the election; (b) that of the officials thus selected one in Precinct 2 and two in Precinct 4 were changed by the Chairman of the Dry League before the polls opened; (c) that the election was otherwise illegally and fraudulently conducted because (aa) the officials at certain precincts were not sworn; (bb) there were not the required number of commissioners at some of the precincts, only two commissioners being in some and in one only one commissioner and a clerk; (cc) only one commissioner signed the tally sheets in a number of instances, such commission signing for himself and for the absent commissioners; (dd) the commissioners generally canvassed and attempted to influence voters at the polls to vote in favor of prohibition, and (ee) the commissioners left the precincts to which they were assigned in some instances and circulated throughout the other precincts canvassing and soliciting votes. (5)That the election officials fraudulently counted votes that were never cast because out of the‘1,600 qualified to vote in the ward the 400 in the armed forces were denied the right to vote and it was inconceivable that over 900 of the remaining 1,200 would have voted. There i.s an array of decisions in our jurisprudence holding that in an election contest the contestant must not only allege specific irregularities in the conduct of an election, but must also allege and show that, but for the occurrence of such irregularities the results of the election would, have been different, Lanier v. Gallatas, 13 La.Ann. 175; State v. Mason, 14 La.Ann. 505; Andrews v. Blackman, 131 La. 355, 59 So. 769; Reeves v. Dean, 138 La. 889, 70 So. 871; and Lafargue v. Galloway, 184 La. 707, 167 So. 197, and this principle has been applied in local option election contests. Watson v. Police Jury of LaSalle Parish, 204 La. 633, 16 So.2d 208. However, in the instant case the plaintiffs are contending that the calling of this election by the Police Jury was unauthorized and that the election itself was illegally held. The State of Louisiana delegated that part of its police powers relative to the regulation and control of the traffic of alcoholic liquors to certain of its political subdivisions by its adoption of Act No. 17 of the First Extraordinary Session of 1935. The first section of this act declares: “That, if any parish, ward or municipality, at an election held for that purpose, which, shall he conducted as nearly as possible in accordance with the election laws of the State, shall, by a majority vote of its duly qualified electors voting at any such election, determine that the business of producing, manufacturing, rectifying, blending or handling, selling, using, distributing, storing or consuming of alcoholic or intoxicating liquors as defined in Section 2 of this Act, otherwise than when prescribed by a licensed physician as a medicine, in such parish, ward or municipality shall not be licensed or permitted therein, such business shall not be therein licensed or permitted.” The second section separates “alcoholic or intoxicating liquors” in to two groups and defines them as follows: (a) Beer and other alcoholic liquors of an alcoholic content greater than a half of 1% of alcohol by volume but not exceeding 6% of alcohol by volume; and (b) malt, vinous, spirituous, alcoholic, or intoxicating liquors containing more than 6% of alcohol. It further provides that an election may be held in respect to the traffic in liquors as defined in both groups or in respect to either. Section 3 prohibits the granting of permits for the sale of such liquors in municipalities, wards, or parishes where prohibited as provided for in the act. Section 4 prescribes the procedure for the holding of elections, and while it provides that an election “shall be ordered * * * only upon petition of twenty-five per centum (25%) of the duly qualified voters * * * to be certified by the Registrar of Voters,” the legislators did not prescribe any specific formalities or details for the procedure other than as provided in Section 1 that the election “shall be conducted as nearly as possible in accordance with the election laws of the State,” and the provision in Section 5 that “Where the election laws do not otherwise provide, the governing authority calling the election shall provide in its ordinance or resolution the manner in which the election shall be conducted and the result thereof promulgated.” (Italics ours.) Thus it may be seen that in delegating the power to suppress the trafficking in liquor to designated political subdivisions, the legislature placed thereon certain limitations. One is that the election to determine the will of the majority of the qualified electors with respe'ct to this proposition be called by the governing authority of the sub-division only when petitioned by more than 25% of the qualified electors thereof. See Waggoner v. Grant Parish Police Jury, 203 La. 1071, 14 So.2d 855. Another is that the election be conducted in a legal manner, for, Section 1 of the act not only makes it mandatory that the election be conducted as nearly as possible in accordance with the election laws of the state, but also makes this a condition precedent to the exercise of the power thus delegated to it and of equal importance and dignity with the provision that such election be by a majority vote of the duly qualified electors voting at the election. There is no provision in the act that notice of the meeting at which the petition is to be considered by the Police Jury or other political sub-division shall be given to the public generally. When this petition, certified to by the Registrar of Voters as containing the signatures of more than 25% of the qualified electors of Ward 2, was presented to the Police Jury, it was its mandatory duty to order such election (see Drew v. Town of Zwolle, 185 La. 867, 171 So. 59), and the Police Jury, in ordering the election and following the legislature mandate that it be conducted as nearly as possible in accordance with the election laws of the state, incorporated, in the resolution, the provision “That the Secretary of this Police Jury be and he is hereby directed to furnish a certified copy of this resolution to the Chairman of the Board of Supervisors of Livingston Parish, and that the said Board be and is hereby requested to appoint the necessary commissioners and other necessary and usual election officials and generally to comply with the laws in connection with said special election.” Under the express provisions of Act No. 224 of 1940, it is the mandatory duty “of the Board of Supervisors of Election, thirty days prior to any election, to appoint three commissioners and one clerk to preside over the election at each polling precinct, and said commissioners and clerk * * * shall be appointed from lists to contain not less than six names furnished by each of the several * * * parties.” Section 12. In Section 17 of this act it is made the mandatory duty of these election officials to proceed without interruption or delay to canvass and count the ballots in conformity with the specific requirements therein laid down. Section 21 provides that, as soon as the votes have been counted and the envelopes sealed as provided in the act, it .shall be the duty of the commissioners to sign and swear to the tally sheets. Plaintiffs have not only alleged that the election was illegally ordered, detailing certain irregularities in connection therewith, but they have also alleged, detailing the facts, that the commissioners were selected contrary to the express provisions of the resolution ordering the election and the law governing the same, the said commissioners having been selected pursuant to a scheme to control the election and having violated certain specified provisions of the election laws in carrying out such scheme. It is our opinion, therefore, that the allegations in their petition do set forth a cause of action. For the reasons assigned, the judgment of the lower court maintaining the exceptions of no cause and no right of action and dismissing plaintiffs’ suit is annulled and set aside, the exceptions are overruled, and the case is remanded to the lower court for further proceedings consistent with the views herein expressed.

LeBLANC, Judge. This is a mandamus proceeding in which the relator, John L. Ratliff, the duly elected marshal of the Village of Roseland, seeks to have the court compel the Mayor and Board of Aldermen of the village to restore his salary to the sum of $50 per month as it was originally fixed and had been paid before it was reduced by them to the sum of $15 per month. After alleging that he is the marshal of the village, having been duly elected and assumed his duties on July 1, 1944, and that he had been receiving the salary of $50 per month,' which is the same salary that had been paid to the marshal over a long period of time, he then avers that the’ action taken by the town council on August 1, 1944, in reducing the salary to $15 per month was unreasonable and arbitrary and prompted by political motives. He also avers that he had been approached by the Mayor and one of the aldermen to permit the operation of slot machines in the village; that sufficient revenues might be derived from that source with which to pay his salary and it was after he refused to do so on the ground that that would constitute a violation of the law, which he could not, as an officer, tolerate, that was also used as an other excuse for reducing his salary. He also alleges that the nature and the extent of his duties occupies all of his time and that they are worth more than the sum of $50 per month is shown by the fact that in addition he is entitled to a percentage of the fines collected for violations of municipal ordinances. The defense seems to be a plea of lack of funds with which to continue paying the relator’s salary at $50 at the time it was reduced and it is then set out in the answer that the reduction was made in the interest of economy; that not only was the relator’s salary reduced but at the same time the Mayor’s as well as that of all the aider-men were also reduced. The trial judge without assigning written reasons ruled in favor of the defendant and denied a writ of mandamus whereupon this appeal was taken. As far as the law in the case is concerned it does not seem to be disputed that the court is vested with the authority to interfere in matters of this kind whenever the action taken by a public board or body, such as the defendant board in this case, appears to have been arbitrary and unreasonable or where there has been an abuse of its discretionary power. In the case of State ex rel. Meaux v. Village of Morse et al., 6 So.2d 221, we had occasion to consider what the law is in cases such as this and it does not seem to be disputed by the defendant in this case that the power of the courts to interfere is now well recognized. In fact, the only defense made is a justification of the Board’s action under the alleged existing facts. We do not think that the plea of shortage of funds is a sufficient answer to the complaint made by the relator in this case. Under the statute, Act 136 of 1898, which governs municipalities of this kind, it is contemplated that a budget of anticipated revenues and expenditures should be made at the beginning and end of each fiscal year. Sec. 36 of the Act. In this budget items of fixed current expenditures, including salaries of the officials, would be shown and it would then be known if these salaries could be paid over the course of the year. If the money should not be available to meet current expenses as they become due and payable, the Mayor and Board of Aldermen are authorized by the statute, under certain restrictions, to borrow the necessary amount with which to pay them." Séc. 15, pár.' 17 of the Act. As a matter of fact it appears that the B'oard of Aldermen of the defendant village has, on occasions, borrowed money and why they could not have done so at the time of the shortage of funds complained of in this case has not been explained. Apparently they did not adopt a budget or if they did, nothing is said about fit in the testimony. The village or town which expects to derive the benefits of incorporation must know that these benefits must be paid for and the only way that can be done is by the collection of licenses and taxation. One of the greatest benefits a village enjoys through incorporation is that of having peace and order properly maintained through a duly elected peace officer. It is shown in this case that the services of such an officer are worth even more than the maximum salary ever fixed for him as other' means of providing additional compensation had to be devised and it is even urged that the present relator could increase his salary if he took advantage of those other means at his disposal. It strikes us however that all that is immaterial to the issue that is involved in this case. The marshal has the right to look to the Board of Aldermen for the salary to be paid for his services to the village without regard to any other work he might do for anybody else or in some other capacity for the village itself. Certainly a man who devotes his entire time, as this relator testified he did, to his office, could hardly be expected to work at a salary of $15 per month especially in these days when the trend is to increase rather than reduce salaries. It is urged that in the interest of the same economy which prompted them to reduce the relator’s salary, the Mayor’s and the Board of Alderman’s salaries were also reduced. But theirs were only nominal salaries of $2 and $1, monthly, and it seems hardly fair to urge the reduction made in those salaries, in comparison, as a justification for the reduction made in the marshal’s salary. Moreover it is noted that the town or village clerk testified that her salary was not reduced at all and whilst the amount is not mentioned, considering the work she does, we would think that hers is more than nominal. She testified that her salary is being paid from a different fund than that from which the marshal’s was paid. Not a word of testimony appears however to show the source of such a fund and why it exists. It doesn’t seem quite proper that there should be a special fund from which the clerk’s salary could be assured and that the marshal, whose office is equally, if not more important, has to depend on the stability of the general fund in order to have his paid regularly. These considerations lead us to the conclusion that the action of the Mayor and Board of Aldermen in reducing relator’s salary was, to say the least, arbitrary and is subject to correction. For the reasons stated it is ordered that the judgment appealed from be and the same is hereby reversed, annulled and set aside and it is now ordered that a writ of mandamus issue herein, directed to the Mayor and Board of Aldermen of the Village of Roseland, commanding them to reinstate the salary of the relator herein, John L.. Ratliff, marshal of the said Village of Roseland, at the sum of $50 per month, beginning with the month of August, 1944, and it is further ordered that the said defendant, Mayor and Board of Aldermen of the Village of Roseland, pay all costs of these proceedings.

PONDER, Justice. The plaintiff, Mrs. Annie Langley, brought suit against W. W. Findley and his insurer, Associated Indemnity Corporation, seeking to recover compensation in the amount of $20 per week for a period of 300 weeks for the death of her husband, Isom J. Langley, and, in the alternative, the sum of $15,300 under the provisions of Article 2315 of the Revised Civil Code. On trial, the lower court gave judgment awarding the plaintiff compensation in the amount of $11.70 per week for a period of 300 weeks. On appeal, the Court of Appeal for the Second Circuit annulled the judgment of the lower court and dismissed the plaintiff’s suit. On application to this Court, the plaintiff was granted review. The matter has now been submitted for our determination. The facts as found by the Court of Appeal, 19 So.2d 908, are as follows: “W. W. Findley, defendant, purchased an oil well in Caddo Parish, which had ceased to produce. He desired to test it for production and through his agent, O. O. Gilbert, effected an agreement with Isom J. Langley, husband of the plaintiff, whereby Langley obligated himself for the consideration of $1,000 to clean out the well and set four inch liner at a depth of 2,430 feet, unless work was stopped by Gilbert at a lesser depth. It was thought that the well could again be made to produce at a depth of not more than 2,430 feet. Langley was obligated to furnish all material, machinery and labor necessary to discharge his part of the contract. When the well had been cleaned to the depth of 2,394 feet or thereabout, a strata of gumbo was encountered which could not be penetrated with the bit then being used. To attach an efficient bit required the withdrawal from the well of the long string of tubing or drill stem. Gilbert and Langley discussed the situation and it was decided by Gilbert to then make a test for production, with the understanding that if unsuccessful, Langley would continue to clean the well to the agreed depth of 2,430 feet. The liner was set on Sunday, August 2, 1942. Langley then withdrew his machinery and labor and Gilbert, acting for Findley, brought his to the scene to swab and bail the well. As an_ accommodation to Gilbert, Langley allowed him to use the string of tubing he had in the well at that time; otherwise Gilbert would have had to use his own tubing in the process of swabbing. “Gilbert began to swab the well on Monday, August 3rd, and continued thereat until about noon Wednesday, at which time, becoming dissatisfied with results, he decided to bail, which means the removal of water and mud. This is a well-recognized method of testing for oil and gas. His bailer was smaller than one owned by Langley and, at Langley’s suggestion, his was substituted and used. Bailing was done Wednesday afternoon and to early afternoon of Thursday when the bailer stuck at the bottom of the well. All efforts by Findley’s men and machinery to extricate it failed. Gilbert then asked Langley to attach his machinery and give him a 'puli’, which was done. However, the bailer remained stuck. The cable attached to it was left taut for the night in the hope that the steady ‘pull’ would disengage it from its fastening, but Friday morning brought no change in the situation. The double efforts of Thursday were resumed and continued until the cable broke. Gilbert then moved defendant’s labor and machinery to the site of another well to ‘pull’ it. Langley and his men soon captured the broken line which had fallen down into the well. On being advised of this, Gilbert with men and machinery, returned to the scene and both machines were again employed in the resumed effort to pull the bailer out. The line again broke and again Gilbert with machinery and men went away to ‘pull’ another well, leaving Langley, his men and equipment engaged in trying to extricate the bailer. This continued to about noon of August 8th, when the derrick over the well, on account of excessive strain upon it, collapsed and fell upon Langley, killing him instantly.” In its analysis of the evidence, the Court of Appeal arrived at the conclusion that Langley assumed a responsibility that did not devolve upon him and elected to act in a manner all his own. It is stated in the opinion “[that Langley] volunteered to perform a task he was free to let alone.” From our appreciation of the facts in this case, the swabbing and bailing of the well formed no part of Langley’s original contract. It was Gilbert’s duty to perform these tasks. Mr. W. W. Findley, the owner of the well, testified that he knew nothing about the oil and gas business and had employed Gilbert to run the lease. He stated that he had not been on the leased premises. In other words, Gilbert was given complete authority by his principal to enter into any agreement or take any steps necessary to develop the premises. It was at Gilbert’s request that the deceased assisted him in the swabbing and bailing operations. Langley, at no time, had control or supervision of these operations. He was merely called in to assist Gilbert. Although Gilbert left the premises at times, the evidence shows that Gilbert never relinquished supervision or control of the operations. He continued to discuss the methods to be used in these operations with Langley up to the time Langley met his death. He never indicated to Langley at any time that Langley was to perform the tasks on his own initiative. In fact, the method employed, which resulted in Langley’s death, was discussed between Langley and Gilbert on the previous day, and they arrived at the conclusion that the derrick would withstand the strain contemplated in such operations. It is contended that Langley was employed as an independent contractor to perform work cognate to that covered by his original contract and which might, have been included in his original contract. The Workmen’s Compensation Statute defines an independent contractor as follows: “The term ‘independent contractor’ shall be considered to mean, for the purpose of this act, any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished.” Act 20 of 1914, sec. 3, subsec. 8; Act 38 of 1918, sec. 1; Act 85 of 1926, sec. 1; Dart’s Louisiana General Statutes, No. 4393. Langley was not employed as an independent contractor to swab and bail the well but was called in to assist in the operations. The control and supervision of the operations were solely under the direction of Gilbert. No agreement was made for the payment of any specified price for his work. He was not employed to perform any specified piece of work as a unit or as a whole. He could have quit the work at any time he saw fit, or he could have been discharged by Gilbert at any time. From our appreciation of the Workmen’s Compensation Statute and the numerous authorities cited by opposing counsel, the nature of the employment must be determined by the peculiar facts and circumstances of each case. Under the circumstances in this case, we agree with the conclusion reached by the Court of Appeal that Langley was not acting as an independent contractor in his efforts to extricate the bailer. A review was granted in this case for the reason that we entertained serious doubts as to the correctness of the holding of the Court of Appeal that Langley was not an employee but a mere volunteer. The evidence conclusively shows that the swabbing and bailing of the well formed no part of Langley’s original contract. It was Gilbert’s duty to swab and bail the well. Gilbert admits in his testimony that he requested Langley to assist him in his exertions to extricate the bailer from the bottom of the well. Although Gilbert was not present continuously throughout the time that Langley endeavored to extricate the bailer, he kept in touch with Langley. He returned on two occasions with his men and machinery and worked with Langley. He consulted with Langley on the day before Langley met his death as to the method to be used and agreed that the derrick would withstand the contemplated strain. At no time did he indicate to Langley that he desired that he desist in his efforts. In fact, his actions encouraged Langley to continue in his efforts to extricate the .bailer. Langley did not volunteer to assist Gilbert but did so at Gilbert’s request. Whatever the nature of Langley’s employment was, it continued from the time he was first requested to assist Gilbert until he met his death. It is suggested that Gilbert’s action of moving his machinery to another well was an abandonment, and that Langley continued in his efforts on his own accord. Argument is presented to the effect that it was to Langley’s interest to remove the bailer in order that he might complete his original contract. We are not impressed with the suggestions for the reason that Langley only had a few feet to drill in order to complete his contract at the time it was agreed that the well should be swabbed and bailed. If Gilbert had abandoned his efforts to extricate the bailer, he would have made it impossible for Langley to complete his contract. If such had been the case, Langley would have had no reason to continue his efforts to retrieve the bailer because he could have recovered practically all if not all of the amount due under the contract. Moreover, the evidence does not show any intention on the part of Gilbert to abandon the works, but, on the other hand, that Gilbert- continued to encourage Langley to pursue his efforts to retrieve the bailer. The swabbing and the bailing, under the facts in this case, were no part of the original contract. The case of Hatten v. Haynes, 175 La. 743, 144 So. 483; Id., La.App., 142 So. 286, is not in point. In that case the plaintiff was an independent contractor and failed to complete his contract according to the plans and specifications. The plaintiff received his injury while correcting defects in the work called for in the original contract. We are presented with no such case herein. There is no contention that Langley was a casual employee. However, if such a contention were advanced, it appears that our Workmen’s Compensation Statute covers casual employment. We have arrived at the conclusion that the facts in this case show an implied employment of Langley, and that the relation of employer-employee continued until Langley met his death. For the reasons assigned, the judgment of the Court of Appeal for the Second Circuit is reversed and set aside, and it is now ordered that the judgment of the district court be reinstated at the cost of the defendants.

HARDY, Judge. Plaintiff sues to recover for personal injuries and damages to her automobile sustained in an intersectional collision which occurred in the City of Shreveport at about 7:30 a. m., April 14, 1943. Plaintiff was driving her Pontiac automobile in a westerly direction on Ockley Drive, and, as she was crossing the intersection with Anniston Street, her car was struck broadside by the car owned and driven by defendant. Plaintiff was slightly injured, sustaining a cut in the scalp and bruises about the legs. Repairs of the damages to her car amounted to the sum of $100.54, and plaintiff claimed damages for personal injuries in an amount of $399.46, bringing her „ total claim to thi exact sum of $500, being within the jurisdiction of the City Court of Shreveport, in which tribunal trial was had. After trial, there was judgment in favor of plaintiff in the sum of $200.45, and, while the allocation of the amount was not set forth in the judgment, and no. written reasons for judgment are included in the record, it is evident that the Court allowed the full amount of necessary repairs to the car and fixed the damages for personal injuries at $100. From this judgment, defendant has appealed, and plaintiff has answered the appeal, praying for an increase in the amount awarded for personal injuries. In the answer to the appeal, plaintiff further claims that defendant’s appeal is frivolous, and prays for damages therefor. Plaintiff-appellee is shut off from any consideration of a claim for damages on the ground of a frivolous appeal by having answered the appeal taken by defendant. An answer to an appeal is, in reality, a character of cross-appeal, in which an appellee takes advantage of an appeal entered and perfected by an appellant in the hope of procuring an alteration or amendment of the judgment rendered in a manner beneficial to the appellee. It logically follows that one should not be permitted to claim the dismissal of appeal on the ground of frivolity, together with damages therefor, and, at the same time, seek a favorable amendment of the judgment rendered, at the hands of the appellate court. Such a procedure is both inconsistent and inequitable, and, for these reasons, this Court will not consider ap-pellee’s claim based on the charge of frivolity. The facts show that at the time of the accident both cars were traveling at a moderate rate of speed. The point is made on behalf of defendant that Anniston Street, along which defendant was proceeding, is a favored street, under traffic ordinances of the City of Shreveport, over Ocldey Drive, which was the thoroughfare being used by plaintiff. However, it is well established that if plaintiff first entered and pre-empted the intersection, defendant thereby lost the benefits granted under such a municipal statute, and responsibility thereupon devolved upon him to take such precautions as might be necessary to avoid a collision with the pre-empting vehicle. Blashfield’s Cyclopedia of Automobile Law and Practice, Perm.Ed., vol. 2, § 991, et seq.; Hutto v. Arbour, La.App., 4 So.2d 84; Gardiner v. Travelers Indemnity Company, La.App., 11 So.2d 61. We think there is no question from the testimony developed on trial of the case that Miss Ferris, the plaintiff, entered the intersection at a speed of approximately 20 miles per hour, and had negotiated almost half the distance across such intersection before being struck by defendant’s car, which was traveling at approximately the same rate of speed. Plaintiff saw defendant’s car approaching the intersection, but we think it is clear that defendant did not perceive the approach of plaintiff’s automobile. In fact, it is evident that defendant was not maintaining a proper lookout, for it is established that he did not see plaintiff’s car until his attention was called to its presence by an exclamation of caution from a passenger. The testimony is a little vague as to just what attempt defendant made, or could make, to avoid the collision, but> aside from his testimony that he immediately applied his brakes, there is no evidence that he made any other effort. Plaintiff’s story of the accident is substantially corroborated by her sister, who was a passenger in the car, and by the testimony of other witnesses, who happened upon the scene of the accident shortly after its occurrence, as to the position of the cars and other physical facts. There is some testimony to the effect that at the time of the accident defendant admitted he was at fault, and offered to take care of plaintiff’s damages. While this admission and offer is not borne out by a preponderance of the testimony, it is established by the testimony of defendant himself that, while he did not admit his fault, he did promise to pay for repairing the car if plaintiff would take it to a certain motor company, where he estimated the damages could be repaired for between $15 and $35. In his testimony defendant several times stated that he did not know exactly how the accident happened, and that he did not see plaintiff’s car until his companion called his attention to its presence. We find that defendant’s negligence is definitely established as the proximate cause of the accident, and, since there is no showing of contributory negligence on the part of plaintiff, there is no question as to the correctness of the judgment of the lower Court. On the question of the quantum of damages allowed to plaintiff, the testimony of the attending physician shows that her injuries were superficial, consisting of a small scalp wound, which it was necessary to close by two stitches, and some small bruises on the legs. There is no evidence that plaintiff suffered to any great extent, there was no infection of the wound, and the stitches were removed nine days after the accident. Nor is there any evidence of any loss of wages, or, indeed, of any financial detriment of any kind suffered by plaintiff. Under the circumstances, we do not find that the amount allowed was either inadequate or excessive. For the reasons assigned, the judgment appealed from is affirmed, at appellant’s cost.

PONDER, Justice. The defendant, Board of Commission-. ers for the Plaquemines Parish East Bank Levee District, is appealing from an adverse judgment of the district court, awarding the plaintiff, L. P. Davis Construction Company, $4,497.21, with legal interest from judicial demand, for the balance due on a contract for the construction of the Davant-Bohemia Lower Line Back Levee. The principal controversy in this litigation is the method of computing payment for the work done under the contract. The defendant takes the position that payments under the contract should be made on the basis of five-sixths of the actual cubic yards moved in constructing the levee. On the other hand, the plaintiff contends that it should be paid on the basis of nine-tenths of the actual cubic yards removed. If the defendant’s contention is upheld, the plaintiff has received sufficient funds to pay for the work. If the plaintiff’s position is accepted, the L. P. Davis Construction Company is entitled to the amount awarded it by the district court. The defendant appellant relies on paragraph 18 of the General Specifications and Conditions which reads as follows: “18. “Embankment — The embankment shall be built of such material, and disposed and distributed in such manner as the Engineer in charge may direct, under the requirements of the Board of State Engineers. The required allowance for shrinkage shall be added to the height of the embankment; this allowance to be at the discretion of the Engineer in charge, up to one-fifth in excess of the net height of the embankment; it being understood that a cubic yard of embankment under this agreement is a net cubic yard'of settled earth and equal to five-sixths of a cubic yard of material in place, within the limits prescribed.” From a reading of the testimony, it is apparent that the form of contract used and 'the written specifications employed were those drafted principally for front line levee work, and they do not properly cover the type of work required in building a levee in the marsh because of the different physical conditions. The Board of State Engineers had supervision of the construction of the levee. The plaintiff offered testimony, which was not contradicted, to the effect that Mr. T. M. McCarroll, assistant engineer for the Board of State Engineers, informed it, at the time plaintiff’s bid was offered, that payments under the contract were to be computed on barrow pit measurements less a small deduction for shrinkage. Mr. Robert N. Contois, field engineer for the Board of State Engineers, who made the preliminary and final surveys of the work under the direction of Mr. Mc-Carroll, testified that he had explained to all the bidders, prior to the letting of the contract, that this method would be used in computing the payments. His testimony is to the effect that he was instructed to do this by Mr. McCarroll. The evidence also shows that this method of computing payment for work done in the construction of back line levees had been generally employed by the Board of State Engineers in the past. Mr. L. T. Fontenellfe, president of the Levee Board of the Plaquemines East Bank Levee District at the time of the letting of the contract, testified that he represented to Mr. Davis, a member of the plaintiff company, and the other bidders, before the contract was awarded, that section 18 as well as other portions of the General Specifications and Conditions were to be eliminated. An examination of the original contract shows that certain provisions of the General Specifications and Conditions, attached thereto, were deleted. However, section 18 was not deleted. Seven partial payments were made on the contract under estimates made by the Board of State Engineers wherein the payment was computed on the basis of barrow pit measurements. Actual yardage is recited in these estimates without showing any reduction for shrinkage. However, in view of the testimony in the case, this undoubtedly represents the net yardage after the reduction was made. The record discloses that the Board of State Engineers took over the construction of this levee with the consent of thp defendant and acted for it. The estimates and computations were made by this board. Sometime after the seventh partial payment had been made on this contract, a dispute arose between the Department of Public Works, who by legislative act took over the duties of the Board of State Engineers, and the plaintiff as to the method of computing the payments. The Department of Public Works assumed the position that under the contract payments should be computed on a five-sixths basis. Two subsequent estimates were made by the Department of Public Works on this basis, and checks were mailed to the plaintiff. The plaintiff accepted these payments under protest. Prior to the time that the last two estimates were made, there was a conference held in the Attorney General’s office attended by Mr. S. E. Huey, acting chief State Engineer, Mr. T. M. McCarroll, assistant State Engineer, Mr. John J. Mun-dinger, Civil Engineer of Baton Rouge, and Mr. W. Carruth Jones, Executive Assistant to the Attorney General, wherein the method of payment under this contract was discussed. From our appreciation of a letter of March 20, 1941 written by Mr. W. Carruth Jones of the Attorney General’s office to Mr. Huey, it was decided that the method of payment first used should be continued, and that in future work of this nature, the specifications should be redrafted to comply with the experience derived from the construction of back line levees. The defendant is under the impression that this , conference only dealt with subsidence resulting from the construction of the levee. Be that as it may, there was a partial payment made on this contract thereafter on March 24, 1941 wherein the yardage was computed on the same basis as that used in the prior partial payments. However, the estimate shows that an allowance was made to the plaintiff for subsidence which was added to the yardage. The plaintiff has asked for a reformation of the contract by eliminating section 18 of the General Specifications and Conditions. We see no necessity to pass on this question for the reason that we have arrived at the conclusion that the plaintiff is entitled to recover under the circumstances in this case. It is of no particular moment whether or not the conference in the Attorney General’s office related only to subsidence. The parties had previously interpreted their contract and acted on it. There is absolutely nothing in the evidence to show any bad faith or fraud on the part of anyone. The evidence conclusively shows that all of the parties acted in good faith. The parties all realized that the form of contract used was not applicable to back line levee work because of the peculiar physical conditions existing in marsh lands. In view of the fact that the form of contract used was not designed to cover back line levee work, and it is ambiguous in some of its provisions, the interpretation placed on the contract by the parties should prevail. The testimony shows that the parties to the contract were cognizant of the fact that the form of contract used was ambiguous insofar as it applied to back levee construction. Especially is this true as to the allowance for subsidence. The plaintiff at the time he presented his bid did so with the understanding that he would be paid on the barrow pit measurement. This method was followed in all payments except the last two. The interpretation placed on the contract by the parties under the circumstances must prevail. See: Article 1956 of the Revised Civil Code; Metcalfe v. Green, 140 La. 950, 74 So. 261; M. M. Ullman & Co. v. Levy, 172 La. 79, 133 So. 369; Salles v. Stafford, Derbes & Roy, Inc., 173 La. 361, 137 So. 62; Sartor v. United Carbon Co., 183 La. 287, 163 So. 103; Vincent v. Bullock, 192 La. 1, 14, 187 So. 35. For the reasons assigned, the judgment of the lower court is affirmed at appellant’s cost. O’NIELL, C. J„ takes no part.

DREW, Judge. This is a suit for damages alleged to have been caused by the crowing of a big red rooster, and for an injunction to prevent like disturbances in the future. For a cause of action, plaintiffs filed the following petition: “I. That petitioner, Mrs. Leonora Myer, is the owner of. the premises situated in the City of Shreveport and known as Municipal No. 5S4 Kings Highway, and that petitioner, Jacob S. Myer, is the son of Mrs. Leonora Myer, and resides with her in the residence at 554 Kings Highway. “II. Petitioners now show that Frank S. Minard, also a resident of your said Parish and State, resides at Municipal No. 540 Kings Highway, in the City of Shreveport, Louisiana, which premises adjoin the premises owned and occupied by your petitioners as aforesaid. “III. Petitioners further show that the said Minard owns and maintains on his premises several roosters and that said roosters constitute and for some time in the past have constituted a flagrant and private nuisance, as is more particularly hereinafter set out. “IV. Petitioners further show that for the five or six weeks immediately prior to the date of filing this petition, the said roosters, and particularly a large red rooster, have begun to crow at the hour of approximately five o’clock (four o’clock Standard Time) in the morning, and that said roosters, and particularly said red rooster, continue to crow loudly at intervals of approximately fifteen minutes until about six-thirty A. M. “V. Petitioners now show that the noise, aural disturbance, din and cacophony produced by the crowing of said roosters can be distinctly heard by petitioners during the period mentioned, and that petitioners have been for the period of several weeks mentioned above, and up to the time of the filing of this petition are awakened from their slumbers by the din and noise created by the crowing of said roosters. “VI. Shows that the loss of sleep and deprivation of rest sustained by petitioners on account of said noise has produced in the plaintiffs a condition of nervousness, and unless said condition is stopped, will result in extreme nervousness and mental and physical disorders. “VII. Petitioners show that they have remonstrated with said Minard with reference to said roosters, and have called upon him in writing to cause the discontinuance of the noise and din, and for the suppression of the nuisance above set out, but without avail, and that they are entitled to a judgment herein enjoining and inhibiting said Minard from further permitting said roosters to crow during the period above mentioned, or any other period or periods of the night, and also for damages commensurate with the inconvenience, annoyance and injury suffered by them up to the time of beginning this action. “VIII. Petitioner Mrs. Leonora Myer shows that she is entitled to the sum of $500.00 damages for the annoyance, inconvenience and disturbance of her morning slumbers by reason of the unlawful and tortious crowing of said roosters, and particularly of said large red rooster, above described, and that petitioner Jacob S. Myer is likewise entitled to the sum of $500.00 damages for the annoyance, inconvenience and disturbance of his morning slumbers by reason of the unlawful and tortious crowing of said roosters, and particularly of said large red rooster, which amounts are in no way excessive, and represent the actual damages suffered and sustained by petitioners. “Wherefore, petitioners pray for service hereof, with citation upon said Frank S. Minard, and after all legal delays and due trial had, for judgment permanently enjoining and inhibiting said defendant from continuing to maintain said roosters, or any other roosters, and to allow them to crow so as to disturb the peace and slumbers of petitioners, and commanding him to cause the discontinuance of the said nuisance, and the further crowing of said roosters, and to fully abate the nuisance above described; and awarding damages to petitioner Mrs. Leonora Myer in said sum of $500.00, with legal interest from judicial demand, and in favor of petitioner Jacob S. Myer in the like sum of $500.00, with like interest from judicial demand, together with all costs of this suit.” Defendant filed exceptions of no cause and no right of action and the exception of no cause of action was sustained by the lower Court, Plaintiffs filed a motion for a re-hearing and amended their petition alleging that the City of Shreveport has a population of 100,000 inhabitants, and that the section of the City in which petitioners and defendant reside, as well as the general area, is exclusively a residential district and has been for many years and there are no areas in said locality adapted to the use of poultry farms or the raising of chickens, and, in any event, the keeping of said rooster was and is not essential to raising chickens. The rehearing was granted and after argument thereon on the exceptions filed to the amended and original petitions, the lower Court rendered judgment sustaining the exception of no right of action and dismissed plaintiffs’ suit. They are now prosecuting this appeal. Plaintiffs do not allege that defendant’s rooster or other chickens are improperly housed or fenced. They do not complain of any insanitary conditions due to the chickens. They do not allege that the chickens are allowed to come on their property to scratch up the flowers, or otherwise desecrate their premises. Their sole and only complaint is that the big red rooster crows at five o’clock A. M. and every fifteen minutes thereafter until six-thirty A. M. each morning. That is, he crows seven times each morning. They do. not complain of the rooster crowing at midnight or any other hour of the night or day. This big red rooster is a most unusual bird if he limits his crowing to the hours complained of by plaintiffs. It is not alleged by them that the crowing of the big red rooster was any different from that of any other rooster, therefore, under the allegations of plaintiffs’ petition, the only question presented is whether or not the usual crowing of a rooster in the morning hours is a nuisance which plaintiffs are in law entitled to have abated. In Paragraph VII of the petition, plaintiffs allege that they are entitled to a judgment enjoining and inhibiting defendant from further permitting the said rooster to crow during the period of time set forth in their petition, or at any other time during the night. Although there seems to be nothing impossible in these fast-moving times, we doubt if anyone has yet learned how to stop a rooster from crowing in the early morning, other than by wringing its neck. Therefore, the right claimed by plaintiffs is the right to prohibit defendant from keeping a rooster on his premises. At this point we wish to state there is no claim by plaintiffs that there is a law prohibiting the keeping or raising of chickens in the City of Shreveport. We are therefore justified in assuming that there is no such law. The crowing of the cock in the early hours of the morning is not a nuisance per se, and it is not alleged to be a nuisance due to any unlawful or improper conduct of defendant in the handling or keeping of said rooster on his premises. Our courts recognize the distinction between a lawful business, improperly operated, so as to constitute a nuisance, and one properly operated that causes some inconvenience to the residents of a neighborhood. In the case of Crump v. Carnahan, 155 La. 648, 99 So. 493, the Court said: “There can be no doubt of the soundness of the rule that every person is required to use his own property and to conduct his business in such a manner as not to cause undue annoyance, disturbance, and discomfort to his neighbors, nor to impair the reasonable enjoyment of his neighbor’s home. On the other hand, it is said that the consensus of the better judicial thought is that an occupation or business lawfully located and followed is never, per se, a nuisance, so that such an occupation is not to be denounced as a nuisance, except to the extent that it is a nuisance. Froelicher v. Southern Marine Works, 118 La. [1077], 1084, 43 So. 882. “The defendant’s dairy business was a going concern, and her pasteurizing plant was equipped and established and in operation long before plaintiff located and established his home in that neighborhood. The business was a lawful one, and it was not being operated in violation of any state law or city regulation, so far as the record shows. The supplying of the citizens with good, wholesome, pasteurized milk is a very desirable and an extremely useful and important occupation or business. Such a plant as the one under consideration, used for the purposes stated, cannot there fore be classified as a public or private nuisance within and of itself, unless managed and operated in a manner so as to make it so.” In Meyer v. Kemper Ice Company, Inc., 180 La. 1037, 158 So. 378, 380, Mrs. Meyer sought to enjoin the Ice Company from operating an ice plant next door to her residence. She alleged that defendant had installed in its plant an internal combustion, or crude oil engine, which rested upon a surface foundation of concrete, which has its exhaust on the side of the plant nearest to her residence, being about seventy feet therefrom; that when said plant is in operation, the excessive vibration of the engine causes every portion of her residence to shake, windows, furniture, mantels, walls, and articles such as dishes on tables to rattle. That the noise from the exhaust is of such a violent and disturbing nature as to make an ordinary conversation or sleep almost impossible. In rejecting plaintiff’s demands ‘for an injunction, the Court said: “The testimony leaves us in no doubt that the mere presence of this plant, located as it is on a lot adjacent to plaintiff’s residence, is objectionable to her, nor do we doubt that the noise and vibrations resulting from the operation of the plant are noticeable. But we think plaintiff, like those of her neighbors who came to court, will soon become accustomed to, and pay no attention to, them, if she wills to do so. The vibrations are only slight, and were not noticed by any of plaintiff’s witnesses until their attention was called to them. Some of her witnesses and some of those called by defendant said that by placing the hand against the walls or a windowpane a slight vibration or tremor was felt, but not otherwise. “The noise is not great, nor excessive. Noise alone or noise accompanied by vibrations may create a nuisance subject to an action for damage or injunction, even though it arises from the carrying on of a trade or business lawful in its nature. But, to have this effect, the noise must be excessive, unreasonable in degree, and of such character as to produce actual, physical discomfort and annoyance to a person of ordinary sensibilities. As was said in Froelicher v. Ironworks, 111 La. 705, 35 So. 821, 823, 64 L.R.A. 228, the ‘injury must be real and not fanciful.’ In that case, where the facts were the same as those in Froelicher v. Southern Marine Works, 118 La. 1077, 43 So. 882, 883, the noises complained of by plaintiff' resulted from the operation of ironworks and machine shops where boilers were repaired and where there was ‘caulking and riveting of iron, steel tanks, and boilers, the screeching and rumbling noise of the gearing, the hammering of iron, steel, copper, and brass, the screeches of the emery wheel as the tools and pieces are sharpened", the vibrations caused by the heavy moving' machinery,’ etc. “The court held that such noises were ‘excessive and tortious,’ and therefore a nuisance. But the court took occasion to say at page 1086 of 118 La., 43 So. 882, 886: “ ‘We deem it also proper to state here that only downright discomfort is actionable. Small inconveniences do not recommend themselves as causes sufficient to close down an industry.’ “In LeBlanc v. Orleans Ice Mfg. Co., 121 La. 249, 46 So. 226, 227, 17 L.R.A..N.S., 287, the court said that the owner of an ice plant must take all proper precautions to prevent noise, smoke, etc., from becoming a nuisance to the neighbors, and to that end must comply with all requirements of police regulations, and, ‘this being done, unavoidable noise, smoke, etc., must be considered as an inconvenience to which the neighbors must submit for the public good. Of course, a city ordinance or permit cannot validate a nuisance. Blanc v. Murray, 36 La.Ann. 162, 51 Am.Rep. 7. The noise of a factory is not a nuisance per se. City of New Orleans v. Lagasse, 114 La. 1055, 38 So. 828. “The court found in that case that the noise was slight and there were no vibrations. Here there is considerable noise and some vibration. But the principle there announced is applicable here. “Defendant built its plant under a permit from the city authorities. Its machinery is all in good condition, and the operation of a plant occasions no more noise or vibration than necessarily results from the operation of any other plant of its kind, and, while this noise may be to some extent annoying to plaintiff, she must submit to it ‘for the public good’; it appearing that the noise is not unreasonable or excessive. “ ‘Mere noise may be a nuisance, if it be of such a character as to be productive of actual physical discomfort and annoyance to a person of ordinary sensibilities, al though such noise (may result from ¡the carrying on of a trade or business in a town or city. But as many useful acts are necessarily attended with more or less noise, reasonable noises in an appropriate locality are not necessarily nuisances, even though they are disagreeable and annoying.’ “See 'Noise,' 29 Cyc. 1185; 46 C.J. 683; 20 R.C.L. 445, § 60.” See also Irby v. Panama Ice Company, Inc., 184 La. 1082, 168 So. 306. Under Annotation, “Poultry Yard or Plant as Nuisance,” 81 A.L.R. 1207, we find the following: “The characteristic noises and odors issuing from a chicken yard and house which are maintained in a cleanly manner and cared for so as not injuriously to affect the health of any normal person in the neighborhood are not a nuisance, although they may make neighboring property uncomfortable as a residence for invalids. Wade v. Miller, 1905, 188 Mass. 6, 73 N.E. 849, 69 L.R.A. 820, wherein the Court said: ‘The defendant had a right to the lawful use -and enjoyment of her premises, and this would include the keeping of hens in houses and a yard used for that purpose, which are shown by the report to have been maintained in a cleanly manner, and cared for in such a way as not to injuriously affect the health of any normal person living in that neighborhood. Although the odor arising from the henhouses and yard, which at times was accompanied by the characteristic cry made by their occupants, may have been unpleasant, it does not appear by the report to have been physically uncomfortable or unbearable. Indeed, the findings of fact fail to show that the conditions existing on the premises of the defendant were abnormal or differed substantially from those usually found in the country, where the ordinary incidents arising from keeping barnyard fowls are not considered extraordinary or peculiarly irritating, even to sensitive persons.’ ” We have not been able to find a decision in any jurisdiction where an injunction was prayed for simply to stop the crowing of a rooster. Neither counsel for the litigants here has cited any such case, and we feel satisfied in presuming there is no such case of record. The test in all such cases is whether the nuisance complained of will or does produce such a condition of things as in the judgment of reasonable men is naturally productive of actual physical discomfort to normal persons of ordinary sensibilities and of ordinary tastes and habits. We cannot conceive of a normal person, endowed with ordinary sensibilities and ordinary habits, being greatly discomforted by the announcement of a new day from the well-trained voice of a stately cock, the sound of which is used as a symbol of good cheer by many advertisers. The voice of the rooster can be heard daily in motion pictures, on the radio and at the birth of a new day all over the world, whether in the country, town or city, one only has to awaken to hear the cheery voice of Chantecler announce the day. He has been doing that all over the world since before the year 1 and, so far as we can find, no one has until now tried to silence his cheerful greetings. The time for this action is most inopportune, with the Government taking for the Armed Forces of our Nation all the broilers, friers, excess hens and eggs from our large poultry-producing centers, as well as a great part of the beef and other meats, and the Agriculture Department at Washington urging everyone to raise poultry, eggs, Victory gardens and other foods. The figures given out at Washington showing the quantity of vegetables produced and canned from Victory gardens last year were astounding and the figures, if given, showing the number of chickens raised and eggs produced in back yards of towns and cities would be more astounding. If wc destroyed the roosters, within a very short time the chicken family would become extinct and the familiar American breakfast of bacon and eggs would be no more. The rooster and his crow, besides being the symbol of good cheer and happiness, have been made use of for many purposes as far back as centuries go. The Indonesian seafarers made use of them on their ships to keep the man-eating sharks away. When the rooster crowed aboard ship — and every ship carried one or more— the sharks thought they were near land and, through fear of being washed ashore to lie there and die, swam away from the ship thereby relieving the seamen from their menace. Without further proclaiming the cheerful and gallant qualities of the big red rooster, we are convinced beyond a reasonable doubt that the cheery outbursts at the break of day cannot be so disturbing as to become a nuisance to' a normal person of ordinary sensibilities and of normal habits and tastes, and that to continue to (allow the rooster to crow is not in derogation of the rights of the plaintiffs. The judgment of the lower Court is therefore affirmed, with costs.

HIGGINS, Justice. The plaintiffs, claiming as heirs of Francois Zenon Boutte, instituted this action against Edgar H. Powell, Edwin P. Brady, Alexis Brian, and the heirs of the late A. Morgan Brian, to establish title to a certain tract of land in Jefferson Parish, under the provisions of Act 38 of 1908, alleging that neither the plaintiffs nor the defendants are in the actual possession of the property. The defendants assert title to the land as transferees under purported deeds dated June 26, 1936 from 162 other parties representing themselves to be the sole heirs of the decedent and who had caused themselves to be recognized as such and placed in possession of his property under an ex parte judgment dated June 26, 1936. This suit, filed on July 26, 1938, was dismissed by the trial judge on April 18, 1940, on certain exceptions which, on appeal, were overruled by us and the case was remanded to the district court for trial on the merits. 197 La. 409, 1 So.2d 677. Instead of going to trial on the merits, the defendants filed what they termed a plea in bar, based on Article 77 of the Revised Civil Code, a plea of estoppel, predicated on Article 1839 of the Revised Civil Code, and a plea of thirty years prescription under Article 1030 of the Revised Civil Code. The trial judge sustained the first two pleas but overruled the third one and dismissed the suit. The plaintiffs appealed. The defendants answered the appeal and again placed at issue, in the alternative, the plea of prescription of thirty years. The plaintiffs allege that Francois Zenon Boutte died intestate on December 9, 1863, without ascendants or descendants but leaving seven brothers and sisters, namely, Marie Louise Hyacinthe Boutte, Antoine Hilaire Boutte, Modeste Boutte, Louis Hil-aire Boutte, Juan Leon Boutte, Celestine Boutte and Jean Baptiste Boutte, from whom they (the plaintiffs) are the direct descendants. They state that under the provisions of Article 897 of the Revised Civil Code the descendants of brothers and sisters of the decedent inherit to the exclusion of the descendants of the paternal uncle of the deceased, through whom defendants’ transferrers claimed the property. The defendants concede that the decedent left one brother, Leon, whose full name was Juan Leon Boutte, but say he moved from Louisiana in 1820 without any known issue and was never heard from thereafter. However, the alleged heirs of this man are some of the parties plaintiff herein. The 162 persons named in the ex parte judgment of June 26, 1936, claim heirship through a paternal uncle of the decedent, namely, John Baptist Boutte. The defendants aver that John Baptist Boutte, uncle of Francois Zenon Boutte, died leaving as his sole heirs six children, namely, Gode-fray Boutte, Phillipps Boutte, Mrs. Azalie Boutte Bel, Mrs. Hermione Boutte Man-delli and Thisaphene Boutte. They assert that as far as was "known” the absentee (Juan) Leon Boutte, brother of the deceased, left no heirs and, 'therefore, Francois Zenon Boutte’s first cousin, Thisa-phene Boutte, ancestor of the 162 parties named in the ex parte judgment, was the nearest of kin and sole heir of the decedent. It was on these representations that these 162 alleged sole heirs had themselves recognized and placed in possession of the land in question by the ex parte judgment of June 26, 1936. On the same day, these persons transferred a 1142/2304 interest in the land in dispute to the defendant, Edgar H. Powell, who had his interest recognized in the judgment and he at once transferred a half thereof or a 571/2304 interest therein to Messrs. Alexis Brian and A. Morgan Brian, who had worked with him on the title and had represented the parties in obtaining the ex parte judgment. On September 7, 1936, the Brians transferred all surface rights in their interest in the land to the defendant, Edwin P. Brady. It developed on the trial of the pleas in question that Powell, a title ab-stractor, having learned that the property belonged to the estate of Francois Zenon Boutte, set out to locate his heirs, and with the assistance of Messrs. Brian and Brian, contingent fee contracts were signed by him and the 162 claimants, for the recovery of the land for them, the 1142/2304 interest being transferred to him under the provisions of the agreements for services rendered. Powell transferred one-half of the above interest to Messrs. Brian and Brian, in accordance with their understanding. The plea in bar is based solely on the ground that the defendants herein “believed” at the time they acquired their interests in the property, that the 162 persons named in the ex parte judgment were the heirs of the deceased and, therefore, even admitting' that they were in error in so concluding, nevertheless they are entitled to hold the land against the real heirs and owners. The case has not been tried on the merits and one of the issues involved there is whether' Leon Boutte, deceased’s brother, moved from Louisiana in 1820 and was an absentee whose existence was unknown in 1863 when decedent died, and whether he had children or descendants, who inherited by representation or directly from him, under the provisions of Articles 897 and 1493 of the Revised Civil Code. There was no evidence taken contradictorily on these issues as the defendants objected on the ground that it was immaterial because they had to show only that they “believed” Leon Boutte was the missing brother of the decedent, without known issue. The trial judge sustained the objection and so limited the proof. The defendants by objecting to the plaintiffs’ evidence as immaterial, on the ground that they and their transferrers “believed” they were dealing with the right heirs and lawful owners, necessarily conceded, for the purpose of considering the plea in bar, that the plaintiffs would have been able to establish that Leon Boutte, brother of the decedent, was not an absentee and had children who, in turn, left the descendants presently claiming title to the property as heirs, and also that Francois Zenon Boutte had three other brothers and three sisters who also left the descendants presently claiming the property as heirs. The plaintiffs’ statements that the 162 parties, who transferred the half interest to the defendants, Powell and the Brians, were not the lawful heirs of deceased but were strangers to his succession must also be assumed to be true. Article 77 of the Civil Code appears in Chapter 3 of Title III, entitled “Of the Effects of Absence Upon the Eventual Rights which may belong to the Absentee”. There are four articles in that chapter, to-wit: “(76) Whoever shall claim a right accruing to a person whose existence is not known, shall be bound to prove that such person existed at the time when the right in question accrued, and until this be proved, his demand shall not be admitted. “(77) In case a succession shall be opened in favor of a person whose existence is not known, such inheritance shall devolve exclusively on those who would have had a concurrent right with him to the estate, or on those on whom the inheritance should have devolved if such person had not existed. “(78) The provisions of the two preceding articles shall not affect the right of claiming the inheritance and any other rights which the absentee or his representatives or assigns may have; these shall be extinguished only by the lapse of time which is established for prescription. “(79) As long as the absentee shall not appear, or a suit shall not be brought in his name, those who shall have been put in possession of the inheritance, shall have a right to the proceeds by them received bona fide.” It will be noted that Article 78 of the Revised Civil Code specifically provides that the absent heir will not be divested of his right of inheritance unless it is extinguished by prescription. If the provisions of Article 77 of the Revised Civil Code are to be interpreted as granting to the heirs of concurrent rights with the party whose existence is not known, the share of the absentee’s inheritance, in exclusive ownership, then, it was an idle act for the law-writer in Article 78 of the Code to recognize the absentee’s right and interest in the inherited property by providing that this right shall be extinguished only by the lapse of time, which is established for prescription; and it was equally vain for them to state that if the missing heir appeared before that time had elapsed, he could claim his right. Clearly, the party whose existence is not known either lost or did not lose his right to inherit because exclusive ownership in the heirs with concurrent rights is the total destruction of part ownership in the party whose existence is not known. These respective rights cannot exist simultaneously. The law-writer recognized this to be true because Article 78 expressly states that the two preceding articles shall not affect the party whose existence is not known or his representatives in claiming his inheritance unless those rights are prescribed. Therefore, we have an express restriction on the provisions of Articles 76 and 77 of the Revised Civil Code. In Succession of Williams, 149 La. 197, 88 So. 791, 794, the husband, whose wife had predeceased him, died leaving three children, one of whom had disappeared sev eral years prior to his death, leaving two daughters. One of the children of the deceased claimed the one-third interest of his lost brother to the exclusion of the absentee’s forced heirs or two daughters, under the provisions of Article 77 of the Revised Civil Code. From an adverse judgment he appealed and this Court, in affirming the judgment, stated: “This court has not heretofore had occasion to decide whether articles 76 and 77 of the Code are applicable to a case where the claims of those who would have a concurrent right with the' absentee, if he were known to be alive, come in conflict with the claims of descendants, forced heirs, of the absentee, who has not been heard of for more than five years and whose existence is therefore not known. That is the case before us; and our opinion is that the articles 76 and 77 of the Code are not applicable. If they were applicable, they would be in conflict with article 57, which confers upon the presumptive heirs of an absentee the absolute right to be placed in provisional possession of his estate, upon proving that he has been absent from the place of his domicile or habitual residence continuously, and has not been heard of, for five years. * * * * * * “An analysis of the language of article 77 also convinces us that it is not applicable to a case where the persons who claim that they ‘would have had a concurrent right with him,’ whose existence is not known, come in conflict with descendants, forced heirs, of the person whose existence is not known. Article 77 applies only to a right of inheritance. Article 76, on the contrary, applies to any right which is claimed to have accrued ‘to a person whose existence is not known’. ij: >}t ‡ ‡ sjc ‡ “We must bear in mind that articles 76, 77, 78 and 79, comprising the entire chapter 3 of title III of the Revised Code, treat only of the class of absentees whose existence is not known and as to whom the law does not establish a presumption, either that they are alive or that they are dead. Chapter 3 therefore provides for the temporary disposition to be made of the rights accruing to that class of absentees whose existence is not known, unless or until it shall be proven whether they were dead or alive when the rights accrued. Article 78 declares that the provisions of the two preceding articles, 76 and 77, shall not af-fed the right of the absentee if he should eventually return, or the right of his legal representatives or assigns, on proof of his death, of claiming the inheritance and any other rights which the absentee or his representatives or assigns may have; which rights shall be extinguished only by the lapse of time which is established for prescription. And article 79 declares that those who shall have been put in possession of the inheritance shall have a right to the proceeds received by them in good faith, as long as the absentee shall not appear or a suit shall not be brought in his name.” (Italics ours.) In Long et al. v. Chailan et al., 187 La. 507, 175 So. 42, 46, the suit was filed under Act 38 of 1908 to establish title to real estate where neither party litigant was in possession thereof. The plaintiffs claimed title to half of the land by inheritance from their mother, who died in 1886. It appears that on March 2, 1901, or more than fourteen years after the mother’s death, the sheriff, by virtue of a writ of fieri facias issued under a judgment rendered against the father for his personal debt sold the whole of the land in question to George Signor. In 1903, Signor sold the property to Mrs. Alice C. Love, who was the daughter of plaintiff’s father by a previous marriage, or a half sister, who subsequently became Mrs. Chailan, from and through whom the defendants, in good faith, by mesne conveyances either directly or indirectly acquired their alleged rights. In annulling' the judgment and overruling the defendants’ exceptions of no cause or right of action, the Court said: “* * * if a person who intends to bring a petitory action knows or anticipates that the defendant will depend upon a sale from one who was not the owner of the property, the plaintiff is not obliged to set up the sale and sue to annul it. * * * “In this connection, it is a matter of no moment to say that a sale of property not owned by the seller is not null but only voidable because the owner may ratify the sale. Article 2452 of the Civil Code does not declare that such a sale is only voidable at the instance of the owner of the property, but declares: ‘The sale of a thing belonging to another person is null.’ And in fact such a sale is null if the owner of the property does not ratify the sale. * * * “Another argument of the defendants in support of their exception of no cause or right of action is that they acquired their titles on their faith in the public records, and that the title which the plaintiffs are asserting was not a matter of record when the defendants acquired their title. The defendants cite the leading case on the subject, McDuffie v. Walker, 125 La. 152, 51 So. 100, maintaining, according to article 2266 of the Civil Code, that a sale or other contract or a judgment affecting immovable property does not affect third persons until it is recorded. So far as that argument has reference to the imperfect description in the deed by which Henry F. Long, Sr., is said to have acquired the property in dispute from L. P. Noland, on November 23, 1878, the argument has reference to the merits of the case. So far as the argument has reference to the fact that the plaintiffs’ inheriting a title from their mother was not a matter of record, the argument cannot prevail, because, according to jthe decisions which we shall refer to hereafter, it is well settled that article 2266 of the Civil Code, or the doctrine of McDuffie v. Walker, is not to be construed so as to defeat the rights of heirs who inherit from their mother her half interest in the community property, bought in the name of her husband.” Therefore, even if it be conceded that the defendants herein acted in good faith (concerning which issue we refrain from expressing any opinion), they did not thereby obtain any better title than their trans-ferrers had acquired by virtue of the ex parte judgment. To hold that they did get a valid title because of good faith would be equivalent to substantially writing out of our law the articles of the Revised Civil Code on “Prescription of ten years” which require a deed translative of title, continuous and open possession, and good faith. R.C.C. arts. 3479, 3451 and 3453. The bona fide possessor in whose favor prescription has not accrued retains the fruits but does not acquire the title to the property. R.C. C. arts. 502 and 503. Articles 1493, 1494 and 1495 of the Revised Civil Code protect the inheritance of forced heirs, which include descendants of whatever degree. The second paragraph of Article 1493 of the Code specifically provides “* * * under the name of children are included descendants of whatever degree they be, it being understood that they are only counted for the child they represent.” ■ As pointed out by this Court in the Succession of Williams, supra, if it be held that under the provisions of Article 77 of the Code, the other heirs of concurrent right take the inheritance exclusively, then it necessarily follows that certain forced heirs would thereby be deprived of their legitime. It is most unlikely that the authors of the Revised Civil Code would have taken such precaution to protect the rights of descendants of whatever degree against deprivation of their legitime and at the same time, elsewhere in the Cdde, intentionally exclude them solely on the ground that the existence of their father or mother was unknown. Furthermore, it appears that there has been much controversy over Article 77 of our Revised Civil Code and the law of France on this subject, as to the proper construction to be placed upon them. Tulane Law Review, Vol. IV, p. 273, Subject, Heirs of Absentees (1929-1930). The author of this commentary points out that the court, by strictly applying the provisions of Article 77 of the Code, would be placed in the unenviable position “of reaching the inequitable result of debarring a man’s children from that which should in all justice be given to them.” Indubitably this was not the intention of the framers of the Code. The defendants rely upon the cases of Martinez v. Wall et al., 1902, 107 La. 737, 31 So. 1023; Pfister v. Casso et al., 1926, 161 La. 940, 109 So. 770; and Succession of Butler, 1928, 166 La. 224, 117 So. 127. We shall discuss them in the above order. In Martinez v. Wall, supra, the plaintiff instituted suit against two of his co-owners in indivisión for the partition of the property. They appeared and excepted on the ground that their absent brother was a necessary party and should be represented. The exceptions were referred to the merits and subsequently abandoned. Judgment was rendered in favor of the plaintiff and against the two defendants, ordering a partition of the property by Imitation. Mrs. Phillips, the adjudicatee at the public auction, refused to comply with her bid and a rule was taken against her to show cause why she should not be required to accept title and pay the purchase price. She urged that the title offered was not a good one and she could not safely take it because of the outstanding rights of the absentee. The court ordered her to comply with her bid. She appealed and the Court of Appeal annulled the judgment, whereupon a writ of review was granted on the plaintiff’s application to this Court. Julia Wail died in July, 1877, leaving four children, one daughter and three sons. One of the sons died subsequent to his mother and another son, Patrick J. Wall, disappeared before his mother’s death or in 1874, and there was nothing to show that he was alive, and there was every reason to believe that he was dead at the time the suit was tried and thereafter. The Court discussed the provisions of Articles 57, 77, 78, 1031 and 1381 of the Revised Civil Code and stated [107 La. 737, 31 So. 1025]: “* * * We do not think that the ap-pellee (Mrs. Philips) can expect to be released from her bid because the title to the property may not be absolutely perfect. She has the right, however, to demand one reasonably safe. In dealing with this matter, we think we are authorized to take into consideration not only the proceedings themselves, but the probability or likelihood of their being attacked. Patrick J. Wall disappeared two or three years before his mother died. His whereabouts were unknown. He has made no appearance since. There is no certainty as to his being dead, either at the time of the opening of his mother’s succession or now. The most that can be said is that his existence was then, and is now, not known. “the issue here is not between Patrick Wall and his brother, nor between Martinez (plaintiff and co-owner) and the two defendants Wall, but between all three of them and the appellee, Mrs. Phillips, and the only question which we are to determine is whether or not the adjudicatee (Mrs. Philips) can safely take title to the property she has bought. We think she can safely do so. “* * * Patrick J. Wall is still absent. No claim has been advanced on his behalf either by himself, or any one claiming under him, adversely to his brother and sister, now before the court. There is no reason to suppose that any claim will be presented. * * *” (Brackets ours.) This Court annulled the judgment of the Court of Appeal and reinstated and affirmed the judgment of the district court, requiring the adjudicatee to accept title to the property. Manifestly, the absent presumptive heir, even if he had been present, could not have prevented the sale of the real property, indivisible in kind and owned in in-división, at public auction for the purpose of effecting a partition thereof. Arts. 1289, 1307 and 1308, R.C.C. Clearly, the only right he would have had would have been to claim his pro rata share of the proceeds. The instant case is not a partition proceeding and the plaintiffs as descendants, the forced heirs of their respective parents are claiming directly and by representation as the real heirs and owners of the property in question. In the case of Pfister v. Casso et al., the plaintiff, a sister of the deceased, Mrs. Bella Casso, instituted a partition suit against her nephews and nieces, children of another predeceased sister. The surviving husband of the deceased intervened and claimed the property belonged to the community formerly existing between himself and his deceased wife. The court concluded that the property belonged to the deceased wife’s separate estate and decreed that it be sold at public auction to effect a partition and the net proceeds distributed — one-half to the plaintiff and the other half to the defendants in equal proportions, because the deceased’s brother, who had disappeared twenty years before her death, had never been heard from since, and there was no one before the court making any claim in his behalf or through him. Again, we observe that even if the absentee, who was represented by a curator ad hoc, were present, he could not have prevented the sale of the real estate owned in indivisión, at public auction, to effect a partition. He would have had the right only to claim his share of the proceeds of the sale. In Succession of Butler, the deceased died in 1914, leaving real and personal property and four surviving children. One of the sons left the State eleven years pri- or to his mother’s death and had not been heard from since 1904 and his existence was unknown. His wife died without issue. The succession was opened and a curator ad hoc was appointed to represent the absentee, against whom the three other children instituted proceedings contradictorily, resulting in a judgment whereby the property belonging to the succession of the deceased was sold and the entire estate partitioned among the four heirs, each being sent into possession of their virile share thereof. Later the three children applied to the court to be recognized as the sole heirs of the deceased and to be placed in possession and absolute ownership of the entire estate including the one-fourth share of the absentee. The trial judge refused to do so but proposed to place them in provisional possession of the absentee’s share in accordance with the provisions of Article 57 of the Revised Civil Code. Originally this Court upheld the ruling of the trial judge but, on rehearing, cited the provisions of Article 77 of the Revised Civil Code and Pfister v. Casso, 161 La. 940, 109 So. 770, wherein Martinez v. Wall, supra, was referred to, and reversed its previous holding and placed the three heirs in absolute possession of the estate of the decedent, including the part of the proceeds of the sale placed under the care of the curator representing the absentee. It was stated that there was no one before the court “to contest the relief prayed for by the relators” and should the absentee return, his rights were fixed and protected by law. Unquestionably the sale of the absentee’s interest in the real estate was valid, he having been represented by the curator and the court having jurisdiction of the res could order the property sold to effect a partition. It is significant that although the relators prayed for absolute ownership and possession, the decree of the court granted them absolute possession of the proceeds of the sale but not absolute ownership. It is also noted that the absentee did not have any descendants, his wife having died without issue, and that there was no one before the court claiming in his behalf or through him the proceeds of the sale. As a matter of law, if the absentee were dead, then his brother and sisters would have been his sole heirs as his nearest kin. In the instant case, we are not dealing with a partition matter and the defendants are not purchasers at public auction held under an order of court directing that real estate be sold for the purpose of effecting a partition. Furthermore, there are numerous plaintiffs before the court claiming as descendants of the decedent’s sole heirs, who are said to have been in existence and known at the time of his death. The defendants argue that the plaintiffs have the right only to sue their transferrers and not them. If the plaintiffs, as the alleged real heirs, are relegated to an action against the 162 parties, who assigned or transferred a half interest in the property to Powell and the Brians, the question arises what could they sue for since there was no cash payment made by Powell and the Brians or property exchanged by them, the sole consideration being services rendered on contingent contracts to secure the property for their transferrers. It is our opinion that the so-called plea in bar is not well founded. ■ The plea of estoppel is founded upon Article 1839 of the Revised Civil Code, which provides: “But if the person, who is really entitled to the quality assumed by the one with whom the contract is made, has contributed to, the error by his neglect or by design, it will not vitiate the agreement. And in the case above stated, a payment to, or a compromise with one, whom the true heir suffered to remain in possession of the inheritance, and to act as heir, without notice, would be valid,” (Emphasis ours.) The defendants do not suggest that the plaintiffs misled or induced them to change their position in any way except by their long silence and ■ inaction. The undivided interests in the property transferred to Powell and the Brians by the alleged 162 heirs represented nothing more than the contingent fee interest under the contracts with them to obtain the land for them. Powell and Alexis Brian testified that they acted only after they had investigated to the point where they “believed” or “thought” they had the right heirs but Powell admitted he did little research work on the subject. Brian did not make a thorough search for birth, marriage and death records of the heirs. The plaintiffs introduced the testimony of E. J. Vigneaux, who stated that he had made an investigation and assembled the family birth, marriage and death records. When the plaintiffs sought to prove that Leon Boutte, brother of the deceased, left descendants who were before the court as parties plaintiff and that Francois Zenon Boutte, the deceased, left three other brothers and three sisters who died leaving descendants, all of whom were parties plaintiff, the defendants objected on the ground that it was immaterial to the issue because they had acted in good faith or in the belief that they had the right heirs whom they had recognized by the ex parte judgment. The trial judge sustained the objection but permitted the plaintiffs to annex certain evidence to a bill of exception. The evidence tends to show that a diligent search would have substantially revealed to the defendants the same family birth, marriage and death records as the plaintiffs discovered. The petitioners did not do anything that might have caused the defendants to err, if error were committed. Three of them elected after their investigation and of their own volition, to ob'tain an ex parte judgment placing certain parties in possession as sole heirs of decedent, seventy three years after his death. The plaintiffs did nothing to mislead Brady, who admits he relied on Alexis Brian’s opinion only. In Long v. Chailan, supra, in connection with the plea of estoppel, this Court, at page 528 of 187 La., at page 49 of 175 So., said: “As to the long silence and delay in the bringing of this suit, especially on the part of the two plaintiffs who were not plaintiffs in the former suits, it was said in Pearce v. Ford, 124 La. 851, 50 So. 771, that mere silence and delay could not cause a loss of title to property except by effect of the laws of prescription. In Charbonnet v. State Realty Co., 155 La. 1044, 99 So. 865, it was held that a judgment dismissing a suit on the ground of abandonment, for a neglect to prosecute the suit for five years, under the provisions of article 3519 of the Revised Civil Code of 1870, as amended by Act No. 107 of 1898, was not a basis for a plea of estoppel or res judicata. * * *” " In Davis et al. v. Young, 36 La.Ann. 374, the Court said: “The plea of estoppel, as we deduce from the argument of the counsel, seems to rest alone on the extreme forbearance, long continued, shown by the plaintiffs to those who for so many years occupied, cultivated and reaped the fruits of their land. If prescription, through such forbearance, has not deprived them of their ownership— which we have held was not the case — we cannot exactly understand how it has created any bar to plaintiffs’ assertion of their right, or furnished defendant a new mode or contrivance for acquiring her neighbor’s land. There is neither merit nor meaning in the plea.” In Pearce et al. v. Ford et al., 124 La. 851, 50 So. 771, 772, the Court declared: “The other contention is that the coheirs of Eliza Pearce Marshall consented to her taking the property, and abandoned their rights to it, as is shown by their silence and inaction from 1882 to the filing of this suit, in April, 1907; but we know of no law by which silence cmd inaction will bring about the loss of title to real estate, unless in connection with the prescription established by law.” (Italics ours.) In Tyson et al. v. Spearman et al., 190 La. 871, 183 So. 201, the Court held that a litigant could not successfully plead that his adversary was estopped to assert his rights by mere lapse of time where he did so within the period prescribed by law. The Court, on page 896 of 190 La., on page 209 of 183 So., also stated: “This Court said, in the case of Maxwell v. W. B. Thompson & Co., 175 La. 252, 143 So. 230, 233, that ‘notice, in its accepted legal sense, means such information on the part of the person charged with notice as would put a prudent person on inquiry to ascertain the true or actual facts,' and in the case of National Park Bank v. Concordia Land & Timber Company, 159 La. 86, 105 So. 234, 239, that ‘notice of facts which ought to excite inq%tiry, and which, if pursued, would lead to knowledge of other facts operates as notice thereof.’ (Italics ours.) “It is stated in Ruling Case Law, Volume 20, under the title'Notice, Section 7, that: " ‘Whatever fairly puts a person on inquiry is sufficient notice, where the means of knowledge are at hand; and if he omits to inquire, he is then chargeable with all the facts which, by a proper inquiry, he might have ascertained. * * * Means of knowledge with the duty of using them are, in equity, equivalent to knowledge itself. Where there is a duty of finding out and knowing, negligent ignorance has the same effect in law as actual knowledge.’ (Italics ours.) “We therefore conclude that our learned brother below properly overruled defendant’s plea of estoppel under the provisions of Article 1839 and en pais.” See also National Park Bank v. Concordia Land Co., 159 La. 86, 105 So. 234. The authorities cited by the defendants’ attorneys on the plea of estoppel, namely, Marshall v. Smedley, 166 La. 364, 117 So. 323 and Hammon v. Sentell, 160 La. 589, 107 So. 437, are discussed in the Tyson et al. v. Spearman et al. case, supra. In the first case this Court, on rehearing, concluded that estoppel had not been pleaded and in the other one it sustained the plea, on the ground that the plaintiffs’ actions therein had misled the defendant, an inno cent and bona fide party, to his prejudice. The Court, in the Tyson case, found that the defendants had sufficient available information to place them on notice and that they could have ascertained that the plaintiffs had an interest in the land and, therefore, their own error and not the plaintiffs’ acts caused them to make the mistake. Reference to the fact that Ernest Boutte and others, who are some of the 162 parties that transferred the half interest to Powell and the Brians, instituted suit against Edwin P. Brady et al. (on March 24, 1928), and that the action was dismissed is unimportant for two reasons: First, it involved the land known as the “Little Temple Tract” which is not the property presently in controversy and, second, the 1079 heirs appearing as the plaintiffs herein were not parties to that suit. The plea of estoppel is without merit. In opposition to the plea of prescription plaintiffs point 'out that the record at this time shows that for 73 years all of the parties claiming as heirs were silent and none of them was in possession of the property in dispute; that the judgment placing the defendants’ authors in title in possession was rendered on June 26, 1936 and the alleged rights of Powell and the Brians were almost simultaneously acquired from them and Brady’s alleged interest was obtained on September 7, 1936; that these were the first indications of any claims of adverse ownership to petitioners or that the defendants’ authors in title were pretending to be the sole heirs or owners of the property; and that the present suit was filed on July 26, 1938. The defendants’ contention now made in connection with the plea of prescription of thirty years was previously presented to this Court in this case, 197 La. 409, 1 So.2d 677, 682, under the exception of no cause of action, and we disposed of it, as follows: “* * * The defendants Brian also filed an exception of no cause of action, their contention being that plaintiffs are precluded from bringing this suit by the prescription of 30 years, established by Article 1030 of the Revised Civil Code. Their argument is that the ex parte judgment sending defendants into possession was an acceptance of the succession by the parties to it, and that this acceptance qut off the right of any other heirs to accept after the 30-year period had lapsed, under the doctrine announced in Bendernagel v. Foret, 145 La. 115, 81 So. 869, and Tillery v. Fuller, 190 La. 586, 182 So. 683. “The ruling in those cases is not applicable here, for the reason that, on exception of no cause of action, the well-pleaded allegations of plaintiffs’ petition must be accepted as true, and plaintiffs allege, in effect, that the 162 persons referred to were strangers to the succession. If that be true, their acceptance thereof did not have the effect of cutting off plaintiffs’ rights. The paramount question raised by plaintiffs’ pleadings is whether they are, in fact, the sole heirs of Francois Zenon Boutte, as they allege. That question will have to be determined at the trial of the case on its merits. These exceptions of no cause of action are without merit and should have been overruled.” As heretofore mentioned, the case has not been tried on its merits and having reached the conclusion that the plea in bar and the plea of estoppel are not well founded, the defendants insofar as this defense is concerned are in the identical position they were when we originally considered the matter. Counsel for the defendants have referred us to the case of Succession of Tyson, 186 La. 516, 172 So. 772. From what we have, already stated with reference to the pleas herein it is obvious that to .a great extent facts which will be pertinent to the merits are also involved here but have not been developed herein due to the defendants’ objection limiting the proof to their good faith. Certainly, we cannot assume those facts to be against the plaintiffs. For instance, the petitioners allege that the 162 parties who transferred the half interest to Powell and the Brians were strangers to the succession of the deceased. This Court, in the above cited case, in considering the plea of prescription of thirty years, where one heir accepts the succession and the other fails to do so, recognized the distinction between such a situation and one where there was a possessor of the property without title and without the benefit of prescription acquirendi causa. The plea of prescription is untenable. For the reasons assigned, the judgment appealed from is annulled, the pleas in bar, estoppel, and prescription are overruled, and the case is remanded to the district court for trial on the merits; costs of the appeal to be paid by the defendants and all other costs to await the final decision of the case. O’NIELL, C. J., recused.

OTT, Judge. Plaintiff was injured in the accident in which the wagon of Vito Cali was run into by the milk truck driven by Jimmie Newman, and she sued for personal injuries in the sum of $15,000, medical expenses and clothes damaged in the sum of $125. As we disposed of the question of liability of the defendants in the suit of Vito Cali, it only remains for us to fix the quantum of damages in this case as to the defendant, Newman. Frances Cali received some cuts and scratches on her face, arms and hands which were rather superficial. She did not receive medical attention, but saw a doctor about five days after the accident who put some dressing on her left ear. Plaintiff claims that her ear has given her trouble since the accident; that it has a ringing in it and feels like it is stopped up. The doctor testified that the blow or rupture to the ear drum should heal up in two or three months. There are some small scars remaining on the young lady’s face, hands and arms, but these are so small and dim that the doctor had to get close to her to see them. Her clothes and shoes were damaged for which she claims $25, which amount she has proved. The trial judge gave her $1,000 for personal injuries, pain and suffering and disfigurement. We think this item should be reduced to $500. She has not proved any medical expenses. For the reasons above assigned, and for the reasons assigned in the case of Cali v. Cloverland Dairy Products Company, Inc., et al., La.App., 21 So.2d 166, it is ordered that as to the defendants, Clover-land Dairy Products Company, Inc., and the New Amsterdam Casualty Company, the judgment herein appealed from is avoided and set aside, and it is now ordered that this case be remanded to the district court to be proceeded with according to law and the views expressed in the case of Vito Cali; that as to the other defendant, Jimmie Newman, the judgment is amended by reducing the amount awarded plaintiff herein from the sum of $1,025 to the sum of $525, and as thus amended, the judgment is affirmed.

PER CURIAM: In the application for a rehearing, the defendants concede that the property involved in this suit was adjudicated to the state for nonpayment of taxes on August 5, 1931, and they contend that there is no need to remand the case for further proof on the tax sale. This admission brings up for decision on the appeal the question of whether or not the seizure and sale of the property under a judgment in favor of Sigler against the plaintiff in February, 1933, after the redemption period had expired, was null and of no effect for the reason that the title to the property was absolute in the state at the time this constable sale was made. The sale of property belonging to another is null, Civil Code, Article 2452, and it necessarily follows that if, at the time the property was sold by the constable in 1933, the title was then in the state and the property then belonged to the state, the attempted sale by the constable conveyed nothing, and the subsequent redemption of the property by the tax debtor could not give validity to a void sale. At the time the property was adjudicated to the state, the plaintiff, as tax debtor, had one year in which to redeem the property (the amendment extending the redemption period to three years not being in effect), and consequently in August, 1932, the property became the property of the state, subject to control and disposition in such manner as the state saw fit to make of it. So when the constable attempted to seize and sell the property under a judgment against plaintiff in 1933, the property did not belong to the plaintiff, but belonged to the state. As was said in the case of Board of Commissioners v. Concordia Land & Timber Co., 141 La. 247 at page 255, 74 So. 921, 925: “Lands adjudicated to the state may be redeemed; but, if not, they become the absolute property of the state, to be sold in the manner prescribed by the statutes. The adjudication vests a present title in the state, with, the right to the possession and to all the revenues of the property.” In the recent case of Lovell v. Dulac Cypress Co., 5 Cir., 117 F.2d 1, the court held that under the Louisiana tax redemption laws, after the one year redemptive period has passed and before actual redemption of the property adjudicated to the state, the state is the absolute owner of the property and can make such use and disposition of the property as it may see fit under its statutes; and until he actually redeems the property, the redemptioner has no right or title whatever in it. In other words, in the interim between the time the redemptive period expires and the actual redemption of the property, the absolute title is in the state and nothing done by or against the original owner or anyone else can affect the title in any manner whatever. But it is contended by the defendants that so long as the title to the property remains in the state, the owner or any person interested personally or as. heir, legatee, creditor or otherwise may redeem the property on paying the taxes, interest and penalty provided by Section 62 of Act 170 of 1898, as amended; that such redemption by the owner inures to the benefit of any person holding rights under the owner. However, if Sigler acquired nothing at the constable sale, he had no rights under that sale which could inure to his heirs when the owner redeemed the property from the state. Had Sigler acquired a right from plaintiff to or against the property before the absolute title became vested in the state by the expiration of the redemptive period, such as by a deed from plaintiff, then this right would have inured to the benefit of Sigler when plaintiff redeemed the property, and the redemption would have related back to perfect the title conveyed by the deed. We are not unmindful of the fact that the Supreme Court has held that the title in the state resulting from a tax adjudication is not a perfect one .after the period for redemption has expired. Garnet’s Estate v. Linder et al., 159 La. 658, 106 So. 22; Lomel Realty Corporation v. Chopin, 177 La. 474, 148 So. 683. Regardless of the apparent conflict in the holdings in these two cases with holdings in the other cases above referred to, we do not think the holdings in the last two cited cases are contrary to our conclusions reached in this case. In the Garnet case the question involved was the right of the City of New Orleans to sell property to enforce its tax lien against property which had been adjudicated to the state, it being held that the property was still liable to sale for the City taxes, as the lien of the City for the enforcement of its taxes was of equal rank to that of the state for the enforcement of taxes due it. And in the Lomel case the court merely held that the fact that the property which had been adjudicated to the state had not been redeemed by the owner within the time prescribed by law did not prevent the owner from • redeeming the property so long as the title was in the state, and thereafter conveying a good title to a purchaser. Our holding in this case is that an attempted sale of property under execution where the property has been adjudicated to the state for the nonpayment of taxes and after the time for redemption has expired can confer no right or title in the purchaser at such sale. The admission made on the application for rehearing malees it possible for us to pass on the question involved and without remanding the case. For the reasons assigned, it is ordered that our former'decree be recalled and set aside, and that the judgment herein appealed from be annulled and set aside, and it is now ordered that there be judgment herein in favor of the plaintiff, Joseph Guidry, and against the defendants, Mrs. Ora Mae Sigler and Mrs. Virginia Sigler Barnes, cancelling and annulling the constable deed, dated February 11, 1933, to Charles Sigler, covering lot 15, Block 1, Schindler Place, and ordering the inscription of said deed cancelled and erased from the records of Calcasieu Parish; defendants to pay all costs of this suit, reserving to said defendants the rights to make a second application for a rehearing.

DREW, Judge. Plaintiff alleged that on August 22, 1941,, he sold and conveyed unto defendant the following described property, to-wit: NEJ4 of NW% and NW% of NE% of Section 6, Township 10 North, Range 8 West, Natchi-toches Parish, Louisiana, and that the said act of conveyance recited a cash consideration of $675, which was never paid. He alleged that defendant is a son-in-law and the property was deeded to him upon his promise to care for and support plaintiff during the remainder of his life; that plaintiff is old, deaf and unable to work or earn his livelihood. Plaintiff further alleged that the true, and only consideration for the transfer was the agreement by defendant to care for and support him, which defendant has failed and refused to do. That defendant never intended to care for and support him and induced him to sign the deed under said promise with the • fraudulent intent of getting possession and ownership of the above described property without paying anything for it. Plaintiff alleged he was advised at the time the deed was prepared that it was necessary for some cash consideration to be stated in the deed in order to make it legal, and for that reason he consented for the cash consideration to be shown instead of the true consideration. Plaintiff further alleged that he owns no other property and by the act of conveyance divested himself of all the property he had. He prayed that the act of conveyance to defendant by him of the above described property be set aside and the Clerk of Court and Ex-Officio Recorder be ordered to cancel same from the records of his office, and that he be declared the true and lawful owner of the above described property. Defendant in answer admits,that he is a son-in-law of plaintiff but denies the want of consideration alleged by plaintiff, and alleged the execution of the deed was a bona fide transaction and expressed the true consideration. He also admits that he promised to care for and maintain plaintiff the remainder of his life, and that he and his wife have before and since the execution of the deed cared for, nursed and provided for plaintiff, who resides in his home. Defendant also admits that plaintiff owns no other property. In rejecting plaintiff’s demands, the lower Court gave the following written reasons: “From the evidence presented, the Court is able to draw the following facts: “That the instrument was in fact and in truth not a sale but an onerous donation for the reason that no cash was actually paid. The defendant claimed that he actually paid the cash consideration, but his testimony with reference thereto states facts that are so highly improbable as to be unworthy of belief and this Court now holds them to be untrue. This Court also finds that by such donation this plaintiff has divested himself of all of his property. “Article 1497 of the Civil Code reads as follows: ‘The donation inter vivos shall in no case divest the donor of all of his property’; he must reserve for himself enough for subsistence; if he does not do it, the donation is null for the whole.’ If the lawmaker had stopped here a solution to this case would be obvious, however, Article 1526 of the Civil Code reads as follows: “ ‘In consequence, the rules peculiar to donations inter vivos do not apply to onerous and remunerative donations, except when the value of the object given exceeds by one-half that of the charges of the services.’ “And under this Article and in face of the proof of the value of the property as being $1000.00, it would be n'ecessary to show that the value of the services rendered exceeded $500.00 or were less than that amount. In the case of Castleman v. Smith, 148 La. 233 [86 So. 778], and in the case of Hearsey v. Craig, 126 La. 824 [53 So. 17], it was held that the burden of proof of the value of the services rendered in an onerous donation was on the plaintiff. In this case no allegation was contained in plaintiff’s petition setting forth the amount of the value of such services by these defendants nor was any proof offered. “Unless some proof of the value of such services were presented to the Court, it would be impossible to know whether or not such services exceeded one-half of the value of the property, and consequently, whether the prohibition contained in Article 1497 of the Civil Code would apply. Instead, plaintiff sought to prove that the defendant had not complied with his obligation to take care of plaintiff. In this connection, I believe he failed, as preponderance of proof seems to show that defendants have reasonably carried out to the date of trial their part of the agreement. Of course, at any time during the lifetime of this plaintiff if the defendant fails to carry out his agreement to take care of him, then the contract could and should be annulled. It is unfortunate that parents see fit to transfer all of their property to their children under a promise to take care of them for the rest of their lives. When the contract is made, everyone is in a good humor and it looks like to the donor that it is a small price to pay for a home and security with his loved ones. Unfortunately, human nature being as it is and the burdens of everyday life make dispositions more or less sour, differences arise, real or fancied, that frequently make the donor regret his action. “Old people are often fractious and young people frequently are guilty of mental cruelty, and with these human imperfections in mind, this Court is of the opinion that the evidence justified as above stated, that the defendants have so far carried out their part of the agreement. “In the case of Landry v. Landry, 40 La.Ann. 229 [3 So. 728], the Supreme Court discussed a case somewhat similar to the one at bar, and in that case that the services shown to have been rendered exceeded one-half of the value of the property given and were ample to make the transfer valid and that the prohibition of Article 1497 of the Civil Code accordingly did not apply. “Therefore, let there be judgment rejecting plaintiff’s demand at his cost.” Plaintiff applied for a rehearing and for the case to be reopened for the reason alleged that the decision is contrary to the law and evidence and that since the decision of the Court, defendant and his wife have moyed from the property in question and plaintiff is now living on the property alone; that defendant has abandoned him and is no longer taking care of him. The application was overruled in a written opinion by the lower Court in which no mention was made of that part of the application dealing with defendant’s having abandoned and ceasing to take care of him. The plaintiff has appealed. A careful study of the record discloses that the finding of fact by the lower Court is correct and the correct law applied thereto. In the course of the opinion of the lower Court it said — and we think correctly : “At any time during the lifetime of this plaintiff if defendant fails to carry out his agreement to take care of him, then, of course, the contract could and should be annulled.” In plaintiff’s application to reopen the case, he alleged that defendant has since the decision, but before judgment was signed, abandoned him and ceased to care for or maintain him. If this is a fact then justice will be done and delay avoided by avoiding another suit upon the same issues by reopening the case for the sole purpose of hearing testimony on that question. It therefore follows that the judgment of the Court is set aside and the case remanded to be reopened for the sole purpose of hearing testimony on the allegations in the motion to reopen and for judgment herein in accordance with said testimony; cost of appeal to be cast on defendant and all other costs to await the final determination of the case.

ROGERS, Justice. The plaintiff corporation, which is the owner of an office building in the City of Shreveport, sued Dickson & Denny, an ordinary partnership, and the individual members thereof, for $3,310 which plaintiff alleged was the balance due for the rent of office space in its building over a period of years. Plaintiff annexed to its petition as a part thereof an itemized account purporting to show the rental agreed upon and the payments made thereon by the defendants from time to time. The defendants, Donald C. Dickson and James A. Denny, are attorneys at law practicing under the name of Dickson & Denny. The space which defendants occupied in plaintiff’s building was used by them as an office in connection with their law practice. In connection with its suit, plaintiff obtained a writ of provisional seizure and the sheriff in executing the writ seized all the law books and the office furniture and equipment found in the leased premises. The defendants, reserving the right to su'e for damages, filed a motion to dissolve the seizure on the ground that the movable effects seized under the writ were the tools of their trade and profession as attorneys at law by which they earned their living and that of their families. The motion to dissolve was tried separately from the main demand, but before the trial judge was able to render his judgment thereon, plaintiff voluntarily dismissed the writ and released the seizure. Thereafter the defendants filed their answer, together with a recon-ventional demand for the recovery of the damages which they alleged they had sustained by the unlawful seizure of their property. The plaintiff in the main suit and defendant in reconvcntion excepted to the reconventional demand on the ground that it failed to disclose any right or cause of action. The trial judge sustained the exception and dismissed the demand. But the judgment was set aside by this Court on a writ of certiorari issued at the instance of the defendants, the Court holding that the defendants were entitled to be heard on their reconventional demand and that any judgment rendered in favor of plaintiff on the main demand might be offset by any judgment that might be rendered in favor of the defendants on the reconventional demand. See, First National Bank Building v. Dickson & Denny, 202 La. 970, 13 So.2d 283. Pleas of prescription were filed by the plaintiff and by the defendants. On the merits, judgment was rendered on the main demand in favor of the plaintiff and against the defendant partnership for $797.50, with interest, and against each of the individual partners for $398.75, representing his virile share, with interest. On the demand in re-convention, judgment was rendered rejecting the demand. From this judgment both the plaintiff and the defendants have appealed. Plaintiff’s suit was filed on March 11, 1942. The first entry appearing on the itemized account annexed to the petition refers to the rent charged and the payment thereof for the month of August, 1930, and the last entry appearing on the account shows rent charged and its payment for the month of March, 1942. A recapitulation of the items appearing on the account shows a total amount of rent charged to the defendants from August, 1930, to March, 1942, both inclusive, a period of nearly twelve years, as $8,045 and the total payments made on account of the rent by defendants during the same period as $4,735.00, leaving a balance of $3,310, which is the amount claimed by plaintiff in this suit. There is nothing in the record which shows on what theory the trial judge gave plaintiff judgment for only $797.50 on its claim for $3,310 and we are not enlightened on this point by the briefs filed on behalf of the parties in submitting the case without oral argument. It may be that the trial judge decided the case with defendants’ plea of prescription in mind as indicated in the brief filed on plaintiff’s behalf under the caption: “The Defendants’ Plea of Prescription Should Be Overruled.” In discussing this qu'estion counsel for plaintiff makes much of the testimony of Mr. Walter Jacobs, the President of the plaintiff company, relative to certain alleged acknowledgments of the indebtedness made to Mr. Jacobs by Mr. Dickson, one of the defendants. But the testimony of Mr. Jacobs as to these alleged acknowledgments is extremely vague and of no probative value since he could not remember the dates on which the acknowledgments were made nor the specific items of indebtedness to which they applied. In order to interrupt the running of prescription as provided by Article 3520 of the Civil Code, the acknowledgment must be clear and specific, recognizing the right of the creditor to enforce his claim. Lackey v. Macmurdo, 9 La.Ann. 15; Marquez & Co. v. Bloom, Kahn & Co., 22 La.Ann. 328; Shultz v. Houghton, 36 La.Ann. 407. There is no clear and specific acknowledgment by defendants of the correctness of plaintiff’s claim in this suit. It is also argued on behalf of the plaintiff, assuming for the pu'rpose of the argument that defendants did not acknowledge the indebtedness, the fact that during the entire time defendants were plaintiff’s tenants their law books and office furniture remained in the leased premises, constituted a continuous pledge on the books and furniture which interrupted the running of prescription against plaintiff’s claim for the rent which was secured by the pledge. It is true that prescription does not run while the thing pledged remains in the pledgee’s possession. Bank of Slidell v. Gause, 157 La. 128, 102 So. 93; Farmers’ Loan & Mortgage Co. v. Langley, 166 La. 251, 117 So. 137. But the right of pledge granted in favor of a landlord by Article 2705 of the Civil Code does not require that the property of the tenant should be placed in the possession of the landlord. Hence, the retention by the tenant of his property in the leased premises can not be construed as an acknowledgment of any debt due the landlord. If it were otherwise, the prescription of three years provided by Article 3538 of the Civil Code for a claim for rent would not begin to run until the tenant had removed his effects from the leased premises. We find nothing in the code article that would justify such a construction. The plea of prescription was embodied by the defendants in their answer and if submitted to the Court at all, it was submitted with the merits, and the presumption is therefore that the trial judge properly acted thereon. The trial judge by his judgment on the merits determined all the issues raised by the parties under their pleadings.. He held that plaintiff was entitled to a judgment against defendants for only $797.50 and not for $3,310 as claimed by plaintiff. Other than the argument contained in the brief filed on behalf of plaintiff on the question of the interruption of prescription, which we have hereinabove considered, plaintiff has failed to point out wherein the judgment is erroneous. This Court has repeatedly and uniformly held that the burden rests on the appellant to show that the judgment appealed from is erroneous; otherwise the judgment will not be disturbed unless the error clearly appears on the face of the record. Pisciotte v. Indemnity Company, 164 La. 260, 113 So. 840; Mills v. Mills, 173 La. 795, 138 So. 671; Ratcliff v. Levin, 175 La. 49, 143 So. 1. Plaintiff has made no such showing. And we are not convinced, from our examination of the record, that the judgment on the main demand does not do justice between the parties. . Mills v. Mills, supra. It is stated in the brief filed on behalf of defendants that the main issue before the Court is whether they have suffered any damages by the wrongful issuance of the writ of provisional seizure. Defendants concede that this is a question of fact which the Court is called upon to decide. The defendants do not point out any fact developed on the trial of the case that sustains their claim. Defendants were not deprived of the possession and use of their books and office equipment which were provisionally seized in this suit. The sheriff, in levying the seizure, appointed defendants as the keepers of the property seized, and after defendants’ motion was filed claiming its exemption, the plaintiff voluntarily dismissed the seizure and released the property and permitted defendants to continue to occupy their office until this suit should be finally decided on the merits. There are some authorities which hold that the voluntary abandonment of a conservatory writ renders the plaintiff responsible in damages for the wrongful suing out of the writ, but only such damages can be recovered as have been actually sustained, when the seizing creditor has acted without malice and on probable cause. Steinhardt v. Leman, 41 La.Ann. 835, 6 So. 665. No evidence was offered by the defendants to show that any malice actuated the plaintiff corporation or its president in instituting this suit. On the contrary, the u'ncontra-dicted testimony of Mr. Jacobs, President of the plaintiff corporation, is that in instituting the suit he acted solely upon the advice of counsel and that he bore no malice whatsoever towards the defendants. In these circumstances, the defendants’ measure of damages is the actual expense and loss resulting from the seizure itself. But defendants failed to show that they incurred any expense as a result of the seizure. They offered some testimony in support of the claim that they were damaged by reason of the humiliation they suffered before the public, the Bench and the Bar. But a careful reading of the testimony given by each of the defendants shows that they were caused no more embarrassment and humiliation by -the filing of the suit coupled with the writ of provisional seizure than they would have suffered merely from the filing of the suit itself. There was no substantial interference with defendants’ business or with the control of their property. The seizure was in effect only a short time and was merely formal. It is clear any embarrassment or humiliation that defendants may have suffered was caused by the suit and not by the seizure. And the law is, as pointed ou't by this Court in Cretin v. Levy, 37 La.Ann. 182, that in a suit for damages for a wrongful provisional seizure, where the alleged resultant losses appear attributable to the suit itself and not to the seizure, they can not be recovered as damages for the wrongful issuance of the writ. The trial judge refused to allow defendants any damages on their reconventional demand and we find nothing from our examination of the record that would justify us in disturbing his judgment. For the reasons assigned, the judgment appealed from is affirmed.

OTT, Judge. Plaintiff filed this suit against the Clover-land Dairy Products Company, Inc., its public liability insurance carrier, New Amsterdam Casualty Company, and Jimmie Newman, asking for damages against these defendants in the total sum of $15,589, on account of personal injuries received by him, medical expenses and loss of his mule and wagon, resulting from an accident on February 6, 1943, when a milk truck driven by said Newman ran into the rear of plaintiff’s wagon on U. S. Highway 51 a mile or two north of Hammond. In his original petition and the supplemental petition later filed by him to meet an exception filed, the plaintiff alleged, in substance, that, in company with his two daughters, he was traveling south on said highway about 7:30 o’clock in the morning, driving his mule and wagon on the right side of the road, when a milk truck driven by said Newman, approaching from the rear at a fast rate of speed, attempted to pass his wagon in the face of a vehicle approaching from the opposite direction, and seeing that he could not pass plaintiff’s wagon, said Newman threw on his brakes, and because of the defective brakes or the speed he was traveling, said New man could not stop his truck and crashed into plaintiff’s wagon, killing the mule, demolishing the wagon and seriously injuring plaintiff. The negligence charged to Newman is that he was not keeping a proper lookout, attempting to pass plaintiff’s wagon in the face of an oncoming vehicle, and in driving at an excessive speed and running into plaintiff’s wagon without stopping the truck. In his supplemental petition, plaintiff alleged that said Newman was an employee of the Cloverland Dairy Products Company, Inc., and was operating its truck loaded with milk being taken to the Company’s plant in New Orleans, and that Newman was on a regular run for said company and in the course of his employer’s trade and undertaking. Just before this case was put at issue, the two major daughters of plaintiff filed separate suits against the three defendants for damages on account of personal injuries received by them in the accident while they were riding in the wagon with their father as guests. One of these suits is entitled Cali v. Cloverland Dairy Products Company, Inc., et al., La.App., 21 So.2d 171, in which case the plaintiff claims damages in the sum of $16,010, and the other case is entitled Cali v. Cloverland Dairy Products Company, Inc., et al., La.App., 21 So.2d 171, in which casé the plaintiff claims damages in the sum of $15,125. The allegations of the plaintiffs in these two suits are practically the same as those made by Vito Cali with respect to the negligence of Newman and the liability of the defendants. What is said here relative to the liability, vel non, of the defendants will apply to all three cases. The defendants filed a joint answer in which they admit that the New Amsterdam Casualty Company is the liability insurer of the Dairy Products Company, but they deny that Newman was guilty of any negligence and deny that said Newman was driving a truck owned by the- Dairy Products Company and deny that he was an agent or employee of said Company at the time of the accident. They aver that the accident occurred about 7 o’clock in the morning, more than a half hour before sun rise, and that the cause of the collision was the failure of Vito Cali to have a tail light on the rear of his wagon as required by law. The alleged negligence of Vito Cali is pleaded in the alternative as a bar to his recovery in his suit, and is also pleaded against the plaintiffs in the other two suits in that they were riding in the wagon with their father with full knowledge of the fact that he did not have the required lights on his wagon. A judgment was rendered in the trial court in favor of Vito Cali against the defendants in the sum of $4,089, in favor of Mary Ann Cali in her suit for the sum of $2,445, and in favor of Frances Cali in her suit in the sum of $1,025. Defendants appealed in all three cases, and plaintiffs filed answers to the appeals, asking that the judgments be amended by increasing the awards to the amounts claimed, and awarding damages for a frivolous appeal. A decided preponderance of the evidence shows that the accident occurred about 7:30 o’clock on the morning of February 6, 1943; that the weather was clear, and it was good daylight; that the road at the point of the accident is straight. There was no need for Cali to have a light on his wagon at the time the accident occurred. , We have no difficulty in reaching the conclusion that the accident was caused solely by the negligence of Newman, the driver of the truck. According to his own testimony, he was driving around 40 miles per hour, and did not see the wagon until he was within 15 to 20 feet of it; that he did not have time to apply his brakes as he approached the wagon from the rear (both vehicles were going south); that another car was coming from the opposite direction, but he was not trying to pass the wagon. He admits that the wagon was struck a hard blow by the truck, and one of the girls in the wagon was thrown against the windshield of the truck. He says that the accident happened about 7:15 o’clock in the morning and that it was still dark, but he is contradicted on this point by practically all the other witnesses who testified that the accident happened not earlier than 7:30 and that it was good daylight. There is evidence in the record to show that the left wheels of the truck were to the left of the center of the pavement just before the truck reached the wagon, and the truck was pulled back on its side of the road just before it struck the wagon in the rear, throwing it in the ditch, killing the mule hitched to the wagon, and throwing the occupants in different directions. The wagon was well over on its side of the road when it was run into from the rear by the truck and completely demolished. There can be no question of the liability of Newman. The most serious question in the case is whether or not there is sufficient evidence in the record to hold the Dairy Products Company and the Casualty Company liable for the acts of Newman. As already stated, the defendants in their answer denied that the truck which Newman was driving at the time of the accident was owned by the Dairy Products Company and denied that Newman was in the employ of that Company. Newman testified that he was employed by the Magnolia Creamery, Inc., a separate corporation, and in connection with his testimony two check stubs were offered in evidence, one showing that for the week ending February 4, 1943, he was paid by the Magnolia Creamery Co., Inc. He was hauling milk on the day of the accident from the cooling plant at Tangipahoa owned by the Cloverland Dairy, and the milk was owned by that Company and was being transported to its plant in New Orleans. Newman testified that the truck he was driving was owned by the Magnolia Creamery, and that there was written on the side of the truck in big, block letters, “Magnolia Creamery, Inc.” There was no direct testimony to refute that of Newman at the time the case was tried, to the effect that he was not an employee of the Cloverland Dairy and the truck was not owned by that Company, other than some circumstances which indicated that the Company had some interest in Newman’s employment and the ownership of the truck. However, several months after the case was tried but before it was decided, counsel for plaintiff filed a motion and rule against the defendants to have the cases reopened and order the production of the public liability policy on the truck. The defendants objected to this motion and rule for the reason that the pleadings had put at issue the ownership of the truck and the cases had been tried and submitted. The objection was overruled and defendants were ordered to comply with the rule within a fixed date. The order was complied with, and a policy, was filed in the record showing that the New Amsterdam Casualty Company carried public liability and property damage insurance on a large number of trucks owned by the Cloverland Dairy Products Company,, including one truck described on the list as W A 20 White 10 ton truck, Motor No. 5089 located at New Orleans. On the policy issued by the Casualty Company covering a fleet of trucks owned by the Dairy Products Company, there is a rider attached to the policy stating that “White 10 ton truck No. 5089 covered under this policy is designated as unit No. 100 instead of as originally shown.” And in consideration of an additional premium the garage location of the truck is changed to Brookhaven, Miss., instead of New Orleans, and by another -rider dated the same date, the policy was extended to cover the interest of the Brookhaven Creamery Company as respects the said White truck, but the last named endorsement was substituted by another rider of a later date (before the accident, however) whereby the policy was extended to cover the interest of the Magnolia Creamery Company as respects unit No. 100 White 10 ton truck M No. 5089 covered under the policy. There is a provision in this endorsement to the effect that the terms and conditions of the Fleet Plan Endorsement attached to the policy shall apply exclusively to Cloverland Dairy Products Company, Inc., and that the policy shall exclude all automobiles and trailers belonging to any individual, firm or corporation other than said Company. The only evidence we have been able to find in the record as to what truck Newman was driving at the time of the accident is that of Newman himself who stated that he was driving a tandem tank White truck loaded with milk, and that the truck was owned by the Magnolia Creamery Company. A state trooper testified that the truck was a large white truck with a tank, and had a Mississippi license on it. In our opinion, the trial judge acted within his discretion in ordering the defendants to produce the policy after the case was tried but before judgment was rendered. He had a right, if in his opinion the ends of justice required, to reopen the cases to permit the -production of further evidence by either side. No further evidence was offered by the plaintiffs after the production of the policy to show that the truck which Newman was driving at the time of the accident was the one described in the endorsement as unit No. 100 White 10 ton truck motor No. 5089. Obviously, the Casualty Company would be liable for the acts of Newman if he was driving this truck at the time of the accident, whether he was employed directly by the Magnolia Creamery Company or indirectly by the Cloverland Dairy Products Company, but we have no right to assume that the truck which he was driving was the one covered by the policy, as a judgment cannot be based on the assumption of an important and a material fact. Nor is there sufficient evidence in the record for us to hold that the Dairy Products Company is responsible for the acts of Newman as its agent or servant. To hold this Company for his acts under the rule of respondeat superior the evidence must show that he and the Company sustained to each other the relationship of master and servant, or that their relationship was such that the Dairy Products Company had control over his operations and that he was acting in furtherance' of the Company’s business. The mere fact, if it was a fact, that the Magnolia Creamery Company owned the truck which Newman was driving and ordinarily was the employer of Newman would not necessarily relieve the Dairy Products Company if at the time of the accident Newman was under the control and in the service of the latter company. Hutto et al. v. Arbour ct al., La.App., 4 So.2d 84. An employee may have two employers at the same time under certain circumstances. See S Blash-field, Cyclopedia of Automobile Law and Practice, § 2941, pp. 71, 72. Whether or not Newman was in the exclusive employ of the Magnolia Creamery Company, or in the employ and service of both companies so as to make either liable for his acts, is not sufficiently shown by the evidence in the record. Under these circumstances, we are of the opinion that the ends of justice will be met by remanding the case as to the Cloverland Dairy Products Company and the New Amsterdam Casualty Company for further proof on the matters and things hereinabove mentioned. As to the other defendant, Newman, we have only to consider the question of amending the judgment as to the amount of the award against him. Vito Cali is a man about 64 years old. The doctor who first saw him after he was taken to the hospital testified that he was suffering from mild shock and deep lacerations; one extending from the corner of his right eye severing the lid and extending back over the forehead five or six inches, and a laceration near the midline at the forehead and extending about six inches over the top of his head; in other words, he was partly scalped over the forehead and front part of his head. The lower lip was split and severed from the right side down to the midline of his chin, and there were other deep lacerations, bruises and contusions over his face and body, with fracture of the ninth rib. He remained in the hospital for about three weeks, and the doctor stated that when he was discharged from the hospital there were two or three places which had not completely healed. The doctor saw him again almost a year later and says that plaintiff had then fully recovered as far as his injuries were concerned, but he had a few scars left, particularly on his lip and over his forehead, however, the doctor did not think these scars were particularly disfiguring to a man plaintiff’s age. The trial judge awarded plaintiff $3,500 for physical injuries, pain and suffering and disfigurement. We have decided to reduce this item to $3,000, to which should be added the proven value of the mule which was killed, $150, the value of the wagon, $100, and medical bill of $324, making a total of $3,574. For the reasons assigned, it is ordered that as to , the defendants, Cloverland Dairy Products Company, Inc., and the New Amsterdam Casualty Company, the judgment appealed from in this case is avoided and set aside, and as to these two defendants, the case is remanded to the district court to be proceeded with according to law and the views herein expressed; and, as to the other defendant, Jimmie Newman, the judgment is amended by reducing the award in favor of Vito Cali from the sum of $4,089 to the sum of $3,-574, and as thus amended, the judgment is affirmed.

McCALEB, Judge. Plaintiff, Lady Ester Lingerie Corporation, is a manufacturer of ladies’ undergarments being organized and doing business under the laws of the state of New York. Defendant, Harry Goldstein Sales Corporation, is a jobber or wholesaler of ladies’ wearing apparel. It is a domestic corporation and has its principal office in New Orleans. Plaintiff sued defendant for $339.27 representing the purchase price of 90 dozen ladies’ slips which it sold and delivered to defendant, allegedly in conformity with a certain order given by defendant to its sales representative on May 17th 1941. Defendant admitted the purchase of the 90 dozen slips and that it is liable for the amount claimed by plaintiff but asserted that it is entitled to a judgment in recon-vention against .the plaintiff for the sum of $381, which would more than offset the claim. And, pleading by way of recon-vention, defendant alleged that, on May 17th, 1941, it ordered from the plaintiff 290 dozen slips in accordance with a certain written order given by it to plaintiff’s representative; that plaintiff failed to ship to it 200 dozen of the slips so ordered; that, as a result, it was required to purchase from various manufacturers 193 dozen slips at advanced prices so that it could fill orders which it had taken from its customers and that it was obliged to pay, in excess of the amount provided for in its order with plaintiff, .the sum of $381 which it fixes as its damage resulting from plaintiff’s failure to deliver the entire order. In view of defendant’s concession of liability to plaintiff on the main demand, the only controverted question presented in the lower court was whether- defendant was entitled to judgment on its claim in recon-vention. After hearing evidence on this matter, the trial judge found in favor of plaintiff and dismissed .the reconventional demand. Defendant has appealed from the adverse decision. It is the contention of defendant that, on May 17th, 1941, it ordered from plaintiff, through its representative, 90 dozen ladies’ slips to be shipped at once and that, at the same time and on the same sales slip, it ordered 200 dozen slips which were to be shipped to it on July 15th, 1941. Plaintiff maintains, on the other hand, that its sales representative, one Mac B. Desreau, agreed only to sell and deliver at once to defendant 90 dozen slips; that, whereas its representative inserted upon the order blank an additional 200 dozen slips to be delivered on July 15th, he informed defendant that he was without authority to bind plaintiff for these additional slips for the reason that plaintiff was not accepting any orders for future deliveries. The evidence submitted by the parties in support of their respective contentions consists of numerous letters ex changed by them from January 13th, 1941, thru September, 1941. In addition thereto, Desreau testified for plaintiff by deposition and Harry Goldstein, president of defendant, gave evidence in its behalf in open court. It appears from the correspondence that plaintiff and defendant had been doing business with each other for some time prior to May 17th, 1941, when the sales order now in controversy was given by defendant to plaintiff’s sales representative. All of these previous transactions were apparently fulfilled to the complete satisfaction of both parties. On May 10th, 1941, defendant wrote plaintiff advising it to ship 60 dozen slips at the price formerly charged. On May 14th, plaintiff informed defendant, by return mail, that it could not accept this order for the reason that the styles selected by defendant had been discontinued. It further advised defendant that “our Mr. Desreau will be in New Orleans on May 17th at which time he will show you our new line.” Thereafter, on May 17th, when Desreau was in New Orleans, he obtained an order from the defendant for 90 dozen slips, which were to be delivered at once, and for 200 dozen slips, which were to be delivered on July 15th. This order was written by Desreau on a sales slip of defendant corporation. He kept the original order in his possession and left a carbon copy of the same with the defendant. On June 6th, 1941, defendant wrote plaintiff requesting that it advise when the slips “recently ordered” would be shipped; that it had received the samples and that it was in great need of the merchandise, having sold a considerable amount of it and having promised delivery daily to its customers. On the following day, June 9th, plaintiff corporation answered defendant’s letter and advised it that request had been made of “our factory to make immediate shipment of your order.” This letter was signed in the name of plaintiff corporation by “M. B. Des-reau”. On June 20th, plaintiff again wrote defendant informing it that, because of increasing production difficulties and other matters beyond its control, “we are unable to maintain our usual delivery schedule of your orders, which you were kind enough to place with us.” It further requested that defendant bear with it until the situation cleared up. On July 24th, defendant wrote to plaintiff advising it that it had not received any deliveries and stating that, inasmuch as it had sold quite a few of the slips, it must have the goods so that shipment could be made to its customers. On August 13th, defendant again wrote plaintiff that it had just received a shipment of slips and noted that style No. 709 had been sent instead of styles No. 741 and No. 710 which it had ordered. It further called attention to the fact that the shipment was made in two dozen lots, instead of one dozen lots as requested by it at the time the goods were ordered. On August 18th, plaintiff, in answer to -this letter, stated that it was at a loss to understand why the shipment had been made in two dozen lots instead of one dozen lots as its factory had specific instructions to the contrary. It further advised that, with reference to styles No. 741 and No. 710, its representative, Mr. Desreau, had told dexend-ant’s president, at the time the order was given, that these particular styles would be shipped only if they were available and that, if they were not, a different style would be substituted; that, in checking its records, it had ascertained that, -through error, style No. 709 had been shipped instead of style No. 707. On August 22nd, defendant answered plaintiff’s letter of the 18th, stating that plaintiff was mistaken when it referred to its order being dated June 10th; that, as a matter of fact, the order was given to Desreau in the early part of May and consisted of 90 dozen slips to be shipped at once and 200 dozen slips to be shipped on July 15th. In this letter, defendant again referred to the fact of the delay in delivery and urged plaintiff to complete the same. On August 25th, plaintiff replied to this letter as follows: “With reference to your claim that we have on (an) order here to be shipped July 15th, please be advised that the only order that we received 'from Mr. Desreau for you was the portion which was completed on August 18th. However, upon checking with Mr. Desreau, we find that he did ask us whether or not we would accept the additional order from you for later delivery, and we turned it down at the time. He wrote to you direct telling you that the second half was cancelled, and that upon his return to New York, he would take it up with us again, and that he would write to you if it was accepted. However, we again refused this order on his return due to market conditions, and he felt that as he had already wrote you it wasn’t necessary to write again.” This was the first time, according to the correspondence, that defendant was noti fied that its order for the 290 dozen slips had not been accepted in full by plaintiff. Defendant’s president, Mr. Goldstein, maintains in his testimony that no previous notice of plaintiff’s partial rejection of defendant’s order was given and the correspondence between the parties corroborates his evidence. On September 2nd, Desreau wrote a letter to defendant in which he stated that he was surprised that defendant had not received a letter written by him while he was in Dallas, Texas, in which he told defendant that he was returning the portion of defendant’s order (which was to be delivered on July 15th) “inasmuch as they were not excepting (accepting) any future deliveries”. In his deposition, however, Desreau, in speaking of that part of the order which was to be delivered on July 15th, stated: “I personally received such an order subject to the approval by Lady Ester Lingerie Corp. This order was never approved. Thereafter with the consent of Mr. Goldstein, I placed order, marked Exhibit 1, with Lady Ester Lingerie Corp., which order was accepted.” It will be readily seen that the testimony of Desreau contradicts the letter which he wrote to defendant on September 2nd. In his letter, he states that he was surprised that defendant had not received a letter supposedly written by him in Dallas, Texas, in which he returned part of the order inasmuch as plaintiff was not accepting any future deliveries. In his deposition, Desreau makes no mention of the letter but would have it appear that he was not authorized to take the order for delivery on July 15th; that such order was subject to the approval of plaintiff and that defendant knew that it would have to be approved. If it be true that it was necessary that plaintiff corporation approve any order taken by Desreau before it would become liable, it seems rather strange that Desreau did not insert this limitation of authority upon the order slip. Far from showing that Desreau’s authority to bind it was in anywise restricted, the letters sent by plaintiff to defendant clearly indicate that he was vested with complete power to contract on its behalf. In its letter of May 14th, in which plaintiff advised defendant that it was cancelling a previous order for styles which had been discontinued, it states: “Our Mr. Des-reau will be in New Orleans on May 17th at which time he will show you our new line.” Nothing is said in that letter, nor in any subsequent letter, that Desreau did not have the right to bind plaintiff for future deliveries as well as immediate ones. It therefore follows that plaintiff cannot now escape liability for its failure to deliver the goods on the ground that its sales representative was not fully authorized to make a binding contract on its behalf. See Interstate Electric Company v. Frank Adam Electric Co., 173 La. 103, 136 So. 283, and authorities there cited. We are further of the opinion that Desreau’s statement in his deposition that he advised Goldstein, president of defendant, that that part of its order calling for delivery of 200 dozen slips on July 15th would be subject to the approval of plaintiff corporation, is not credible. Goldstein’s evidence and the written correspondence in tlie case convinces us that defendant corporation was led to believe that the goods would be delivered and that the first notice it ever had that plaintiff did not intend to comply with its order in full was on August 25th, 1941. Hence, we hold that plaintiff has breached its contract and is liable for the damages sustained by defendant. Before we discuss the measure of damages tq be awarded to defendant, we note that plaintiff’s counsel objected, in the District Court, to the admission of any evidence in support of the reconventional demand on the ground that the allegations contained therein were too vague and indefinite to authorize the submission of proof. This objection was overruled by the court. In their brief filed in this court, counsel for plaintiff again mention their objection, which they claim was well founded, but they also inform us that “we are not standing on this legal ground.” Accordingly, we take it that this point has been abandoned although some authorities are cited by counsel in support of it. Coming now to the question of the damages sustained by defendant, we first direct our attention to the allegations of the reconventional demand. It is claimed by defendant that, because of plaintiff’s failure to deliver all of the goods ordered by it, it was required to purchase similar merchandise from other manufacturers in order to make delivery to its customers in accordance with previous orders which it had accepted from those customers on the strength of plaintiff's acceptance of its order of May 17th, 1941. It, however, does not seek to recover the profit which it would have made on the resale of the merchandise to its customers but only for the difference in the price which it agreed to pay plaintiff for the goods ordered and the price it was compelled to pay other manufacturers for similar goods. In other words, defendant is claiming, as damages for breach of the contract, the difference between the contract price and the market price of the merchandise. This is the universal rule governing the measure of damages to be allowed a purchaser in cases such as this. See Kohlman v. Witherell & Dobbins Co., 155 La. 57, 98 So. 756, and cases there cited. Counsel for plaintiff state in their brief that “the appellant claims damages on the theory that the failure of the appellee to fulfill the second part of the order caused him to purchase goods on the market to fulfill his contracts.” It is true, as stated by counsel, that this theory is advanced by defendant in its reconventional demand. However, we think that the allegations to that effect may be treated as surplusage inasmuch as defendant is not claiming its loss to be the profit which it would have made on the resale of the goods to its customers. It is also plain that, if such a claim had been asserted by defendant, it could not be sustained for the reason that there is neither allegation nor proof to show that the sale made by plaintiff to defendant was predicated upon a resale of the merchandise by defendant to its customers. Hence, any damages for loss of profits, which are permissible under Article 1934 of the Civil Code, were not within the contemplation of the parties. In Hafner Mfg. Co. v. Lieber Lumber & Shingle Co., 127 La. 348, 53 So. 646, 647, the plaintiff, in suing defendant for breach of contract on a sale of lumber, alleged in its petition that it had contracted with other persons to sell them the lumber to be supplied by defendant; that this fact was well known to defendant and that, by defendant’s failure to comply with its contract, it is required to buy other lumber at advanced prices to fill its commitments to other persons. In view of this allegation, the defendant filed a plea of estoppel averring that, since plaintiff had judicially admitted that it had contracted with other persons to sell the lumber to be supplied by defendant and that this fact was well known to defendant, plaintiff was estopped from claiming as damages the difference between the contract price and the market price of the lumber and that it was entitled only to recover whatever profit it would have made on the resale of the lumber to other persons. Defendant’s plea was overruled by the lower court and, on appeal, the Supreme Court found that the trial judge’s action was correct. The opinion states: “The allegation in question neither adds to nor detracts from the cause of action as otherwise set forth in the petition. Strike it out, or leave it in, and the petition remains exactly and precisely the same in legal intendment and effect. The allegation is mere idle verbiage. What contracts plaintiff may have had, or not had, with third persons with reference to this lumber, and what knowledge the defendant company may have had or not had of such contracts, is utterly immaterial, so long as no allegation is made that the contract sued on was made with reference to such other contracts; and no allegation of that kind is now made. The petition does not purport to charge the defendant company with a different obligation from that which would have resulted from the contract sued on if said other contracts had not been made.” Applying the foregoing reasoning to the situation presented in the case at bar, it will be at once seen that, although defendant claims that it was required to purchase similar merchandise from other manufacturers as a result of plaintiff’s failure to deliver the 200 dozen slips in accordance with its order, it does not pray for its damages to be measured by the profit it lost by reason of plaintiff’s breach, nor does it allege that its order with the plaintiff was predicated on the commitments which it had made to its customers. On the contrary, the damages sought to be recovered are based on the difference between the contract price contained in its order and the advanced price which it paid to other manufacturers for similar goods. As stated above, the universal rule with respect to the measure of damages for breach of a contract such as this is the difference between the contract price and the market value. And the authorities hold that it is not necessary for the injured purchaser to actually replace the goods bought under the contract by subsequent purchases on the open market. See Kohl man v. Witherell & Dobbins Co., supra; Gallaspy v. A. J. Ingersell & Co., 147 La. 102, 84 So. 510; Bonsor & Co. v. Simon Rice Milling Co., 151 La. 1094, 92 So. 711, and other kindred authorities. In the case at bar, it is shown that defendant, between July 2nd, 1941, and January 5th, 1942, purchased from other manufacturing concerns 248 dozen slips similar in quality to those purchased from plaintiff on May 17th, 1941, at prices approximating $2 per dozen slips higher than the price quoted by plaintiff. Defendant’s president, Mr. Goldstein, stated on the witness stand that all of these purchases were made for the purpose of filling orders of resale which defendant had made with its customers on the strength of the order of purchase placed with plaintiff. Obviously, the witness is mistaken in his testimony inasmuch as many of the purchases were made prior to August 25th, 1941, which is the date on which defendant became advised of the fact that plaintiff had refused its order for the delivery of the 200 dozen slips. But this statement of Goldstein is of no importance to the determination of defendant’s damages — for, as above pointed out, the measure of damages recoverable is the difference between the market value and the contract price and it is not material whether the goods were purchased in order to meet commitments to defendant’s customers or not. The evidence plainly establishes that there was a considerable advance in the price of ladies’ slips from May 17th, 1941, to July 15th, when plaintiff was required to deliver the merchandise in accordance with defendant’s order. It is shown that, on July 22nd, 1941, defendant purchased similar merchandise from Brighton Undg. Co. at $6.75 per dozen slips as compared to the, contract price quoted by plaintiff of $4.75. This purchase was made at a time in close approximation to the date when plaintiff should have delivered the slips ordered by defendant and substantially establishes - the market value of the slips at the time of the breach. Hence, the damages sustained by defendant is the difference between $4.75 per dozen slips and $6.75 per dozen or $2 per dozen on 200 dozen slips. This amounts to $400. However, since defendant fixes its damage to be $381 in its «conventional demand, recovery will be limited to that amount. For the reasons assigned, the judgment of the trial court in plaintiff’s favor on the main demand is affirmed. But the judgment dismissing defendant’s «conventional demand is reversed and it is now ordered, adjudged and decreed that there be judgment in reconvention in favor of Harry Goldstein Sales Corporation, plaintiff in reconvention, and against Lady Ester Lingerie Corporation, defendant in recon-vention, in the full sum of $381 with legal interest thereon from judicial demand until paid. The costs of this appeal are to be borne by Lady Ester Lingerie Corporation. The costs in the District Court shall be divided equally between plaintiff and defendant. Affirmed in part. Reversed in part.

FRED G. BENTON, Judge ad hoc. These two suits grew out of an automobile accident which occurred at the intersection of Lessard and Charles Streets in the City of Donaldsonville on August 18, 1943, when a Chevrolet panel truck traveling west on Charles Street owned by Herbert Bea and driven at the time by his wife, Mabel, was struck by a Ford traveling south on Lessard driven by Anthony Russo, Jr., the minor son of the defendant. The accident occurred after a good dark between 9 and 10 o’clock p. m. The Bea truck was occupied by the said Mabel Bea and by the wife of Penny Douglas, referred to in the petition as “Mrs. Penny Douglas”, and by a minor son, Will Douglas. The plaintiffs in the first suit are Herbert Bea and his wife, Mabel. He is claiming the right to recover the sum of $1604.53 representing damage to his truck, loss of consortium of his wife, medical bills and nursing and servant costs and other expenses all allegedly resulting from his wife’s injuries. She is seeking to recover $7000 for her personal injuries and for concomitant loss of consortium. Plaintiffs in the other suit are the wife of the said Penny Douglas joined by Penny Douglas individually. She is claiming the sum of $2100 for her alleged physical injuries and he is suing for $2300 on behalf of his minor son for physical injuries. The plaintiffs charge in each suit that Anthony Russo, Jr., was driving at a high rate of speed upon the left side of Les-sard Street, without maintaining any proper lookout, and that he struck the Bea ■truck standing in a stationary position upon the east or left side of Lessard Street .where it had been brought to a stop by Mabel Bea before entering Lessard Street. The answer of the defendant in each suit denies any negligence on the part of young Russo, and alleges that the collision was caused by the fault of Mabel Bea in driving her truck into and across Lessard Street, the right of way street under .the town ordinance, immediately in front of the Russo car, and at a time when such action on her part represented a violation of said right of way. In the Bea suit the defendant filed a reconventional demand for damages to his Ford car in the sum of $249.53. No alternative or other plea of contributory negligence is relied upon to bar recovery in either case. The trial judge rendered judgment in both suits in favor of the defendant, and accordingly dismissed the suits at the plaintiffs’ cost. He also dismissed the re-conventional demand upon the statement that there was not sufficient evidence to sustain the damages claimed. Plaintiffs in each case have appealed and the defendant has answered the appeal in the Bea suit and asked for an amendment to the decree below so as to allow the said reconventional demand. Aside from the question of quantum the one issue in each case is as to whether Anthony Russo Jr. was guilty of any fault or negligence which contributed to the accident. There is some conflict in the oral testimony of the witnesses but the physical facts indicate rather conclusively that the impact between the two vehicles occurred at a time when Russo was traveling upon the wrong side of Lessard Street and at a high rate of speed. In considering this question it is important that we have a clear picture of the said intersection. From the sketch in the record it is shown that Lessard Street runs north and south and has a paved slab 18 feet wide. On the east of this slab there is a gravel shoulder a little over 15 feet wide, and then a sidewalk. Charles Street is graveled and at the point where it intersects with Lessard Street the sidewalk on the east side of Lessard extends out into Charles Street on both sides almost 12 feet, leaving a traffic lane between the ends of this sidewalk of 18% feet. Thus it follows that a car traveling upon Charles Street and approaching the paved portion of Les- sard Street from the east, as was the Bea car, would first be required to pass through the traffic lane between the ends of this sidewalk and proceed a distance of a little over 15 feet before reaching the east side of the 18 feet of pavement forming the traveled portion of Lessard Street. There is no dispute but that the Bea truck was struck on its right side near the front door. The decided preponderance of the evidence is to the effect that it was turned over and came to rest on the gravel portion of Lessard Street on the east side from 6 to 8 feet east of the 18 foot paved slab. The Chief of Police of Donaldson-ville who lives in the vicinity and who went to the scene of the accident within a very short time after it happened so testified. And even young Russo himself admits that the Chief was not far wrong in his statement. While the preponderance of the testimony is to the same effect, the physical facts are suspectible of no other interpretation than that Anthony Russo, Jr., was at least partially off of the paved portion of Lessard Street on the wrong side of that street at the time of the accident, and was traveling at a fast clip. Where such is the case the physical facts are to be accepted by the Court as the determining factor. That Russo was_ traveling at a fast clip is shown by the fact that the force of the blow caused the Bea truck to be turned over on its side apparently right at the point where it was struck. Young Russo traveling south on Lessard had passed another car going in the same direction some three-fourths of a block north of the intersection where the accident happened. He gave as his reason for being on the left side of Lessard that he had not had time to get back to his right after passing this car. He and his companion fixed the speed of their car at from 20 to 30 miles per hour. The Chief of Police who lived on Lessard Street a block and a half north of the intersection testified that he heard a tar pass his home going at a fast speed and making a lot of noise. Immediately thereafter someone told him that the car which had just passed was in a wreck and he went without delay to the scene. Although the Chief did not identify the car as it passed his home the circumstances related by him point strongly to the conclusion that it was the Russo car. Moreover the two men in the car which young Russo admitted he passed three-fourths of a block from where the accident occurred testified that they heard but did not see the collision. This was a very limited distance within which to remain beyond the view of the collision unless Russo was traveling at high speed. In any event there was certainly sufficient time and space for Russo to get back into position upon Lessard Street. It seems obvious that rather than doing this Russo was maintaining this position with at least a portion of his car on the shoulder on' the east side of Lessard Street, and was continuing to travel at a good speed when he struck the Bea truck standing still or moving at a slow pace on the east shoulder of Les-sard. There is no alternative or other plea of contributory negligence on the part of Mabel Bea, as shown, and for this reason under the repeated decisions of this and the other appellate courts of the State the defense of' fault on her part of a nature to bar recovery cannot be availed of. Pretermitting the point, however, the facts do not show negligence on her part that contributed in any way to the accident, since she had not actually invaded the right of way existing in favor of the Russo car at the time of the impact, and since it seems entirely reasonable to conclude under the established facts that the accident would not have occurred if the Russo car had been maintaining a proper place upon the right of way street, and had been traveling at a reasonable rate of speed. The fact that she had entered the intersection of Lessard Street and was on the gravel shoulder of that street when she was struck, and the fact, if it is a fact, that she was driving in the center or to the left of Charles Street as she approached the intersection do not in the majority opinion of the Court constitute contributory negligence on her part. She had a right to assume that any motorist traveling on Lessard Street would at least stay upon the paved or traveled portion of the street, or at any rate that any such motorist would if he got off the pavement get off on the right rather than the wrong side. She certainly was not required to stop east of the sidewalk projection on the east side of Lessard Street, as after passing this projection traveling at a slow speed she was still in a position to stop, and to do whatever was necessary to ex tend full recognition to the right of way existing in favor of Lessard Street before her truck got to the paved or traveled portion. Whether she approached the intersection to the right or to the center or to the left of Charles Street is immaterial for it is clear that she would have been struck by the Russo car even if she had entered on the extreme right side of Charles Street. It was of course impossible for her to do that on account of the projecting sidewalk. An exception of no cause or right •of action was filed by defendant in the Douglas suit on the ground that the minor, Will Douglas, was not represented in the suit by his father. There is considerable confusion in the pleadings and in the evidence as to the correct names of these parties. It is to be noted that in the petition “Penny Douglas” appears on behalf of his minor child “Will Douglas.” The wife is described as “Mrs. Penny Douglas.” The prayer of the petition is for judgment in favor of Mrs. Penny Douglas for herself, and in favor of Penny Douglas for the use and benefit of said minor. It is obvious that when the attorney for the plaintiff drew the petition he understood the name of the husband to be Penny Douglas, and he thereupon designated the wife as Mrs. Penny Douglas. Yet in the testimony (page 42), the husband is called “Junion Douglas,” and is asked several questions relative to his wife, Penny Douglas. In this evidence the boy seems to be named “Junion Will Douglas.” The exception was filed after the case was tried. There is nothing in the minutes to indicate that it was acted upon by the trial judge. While the situation is confusing, and should have been cleared up, it would seem that the pleadings could and would have been made compatible with the proof if a proper exception had been filed in the beginning. The matter is not one involving a peremptory defense, or of a nature where the confusion could not have been readily cleared up by proper amendments to the petition at any time during the trial. The father of the boy actually appeared for him, and his identity is established beyond question, even though his name may have been incorrectly shown in the petition. Any errors in the pleadings have been corrected by the proof. Under these circumstances the exception must be overruled. As to quantum, Mabel Bea is entitled to $1500.00 for her injuries. These injuries 'are rather serious. The truck in which she was riding turned over on her. She was unconscious thereafter for several hours. She suffered a concussion of the brain, and separation of some ribs from the breastbone. She also suffered shock and some internal injuries. She was confined for some five weeks, and the chest injuries were painful on respiration for some little time. None of her injuries however are permanent. Herbert Bea has proved the following items: damages to his car in the sum of $149.53, which is the estimated cost of repair; railroad fare for trip home $48; miscellaneous expenses in connection with that trip $25; a minimum sum; doctor bill in the sum of $120, making a total due him of $342.53. His claim for damages on account of loss of consortium of his wife cannot be allowed in view of the present state of our jurisprudence which does not allow or sanction an estimation of such value in monetary terms. In the second suit the Douglas woman proved that she received an injury to her nose, and a laceration over her eye which required some stitches. Her nose seems to have given her some trouble and according to her testimony she was still being treated for her injury at the time of the trial. An award of $400 is adequate. The minor, Junion Will Douglas, received a cut on his nose and one or two of his teeth were knocked loose. The nervous shock caused him to lose control temporarily of his bowel action. An award of $250 would seem sufficient. Accordingly, in the case of Herbert and Mabel Bea v. Tony Russo, the decree of the lower Court is reversed, and judgment is rendered herein in favor of Herbert Bea and against the defendant Tony Russo in the sum of $342.53, and in favor of Mabel Bea and against the said Tony Russo in the sum of $1500, with legal interest on both sums from judicial demand until paid. The defendant is to pay all costs in both Courts. LE BLANC, J., recused.

HARDY, Judge. Plaintiff, as administratrix, brings this suit against defendant on a promissory note in the sum of $200 signed by defendant, W. M. Bagwell, and payable to his mother, the decedent, Mrs. A. J. Bagwell. In answer, defendant admitted the execution and delivery of the note sued on, and, assuming the position of plaintiff in reconvention, claimed the sum of $282.94 for services rendered to decedent before and at the time of her death. The note sued on was subject to credits of two payments in the amount of $10 made February ll.th, 1941, and $16 made March 28th, 1942. The services for which defendant made claim in his reconventional demand consisted specifically of charges for 30 trips made by defendant in transporting Mrs. A. J. Bagwell from her home to Ruston, some eight miles distant, for medical treatment, at $5 per trip; charges of $25 per week for four weeks for nursing the deceased while she was bedridden; and $12.50 per week for a period of two weeks while the deceased was convalescing. The balance of the $282.94 claimed by defendant in his recon-ventional demand is alleged to have been made up by telephone charges made at the time of the death of Mrs. Bagwell for the purpose of notifying the other children. On trial plaintiff offered in evidence the promissory note sued on and rested her case. The only evidence as to .defendant’s reconventional demand was' defendant’s testimony, and, after the case was closed, counsel for plaintiff called attention of the trial court to the provision of Act No. 11 of 1926 requiring testimony of at least one credible witness to establish a debt against a decedent. Counsel for defendant filed a motion for a new trial, which was granted, and, on the second trial, defendant introduced the testimony of a number of witnesses in the attempt to substantiate his re-conventional demand. Judgment was rendered in favor of plaintiff for the amount of the note, and in favor of defendant for the full amount of his reconventional demand, from which judgment plaintiff has appealed. This case involves purely and simply a question of fact, and it is well established that the judgment of a lower court on a question of fact will not be disturbed on appeal except in cases of manifest error. Careful study of the record in this case has convinced us that the judgment of the lower court is manifestly erroneous and should be set aside in the interest of strict justice as between the parties. There is no question as to liability of the defendant upon the promissory note, which is the basis of plaintiff’s demand. The de fendant admitted the obligation, and, while there was some implication in his testimony that his mother had promised to remit the amount due, there was no corroboration, nor, indeed, did defendant himself make any serious effort to press this claim. There is no question as to the correctness of that part of the judgment on the main demand in favor of plaintiff. In the position of plaintiff in re-convention, it is well settled that a defendant bears the burden of establishing his claim, and, in this instance, in our opinion, defendant has utterly failed to discharge this burden of proof. Defendant, W. M. Bagwell, and his wife lived at Choudrant, Louisiana, about eight miles from Ruston, as also did his mother, Mrs. A. J. Bagwell. Mrs. A. J. Bagwell did not make her home with her son, W. M. Bagwell, but lived nearby. Defendant and his witnesses testified that during the years 1941, 1942 and 1943 his mother was in poor health, and it was necessary for her to make visits to the doctors’ office in Ruston at more or less frequent intervals during this period. On the first trial of this case, defendant testified positively that during the years 1941, 1942 and 1943 he and his wife transported his mother in his automobile from Choudrant to Ruston and return on 30 different occasions. During the first part of this period, that is, from 1941 until January of 1942, according to defendant’s testimony, his mother was in the care of Dr. M. T. Green, and from January, 1942, until the time of her death she was treated by Dr. J. B. Harris. Pertinent extracts from the testimony of plaintiff in this connection are quoted as follows: “From October 13, 1941, until January, 1942, I made 10 trips to Dr. Green’s office. The last trip we made was in January, 1942. She quit Dr. Green in January of 1942 and went over to Dr. Harris as her family doctor.” * ****{: * “Q. Now, up until the time of her death, Mr. Bagwell, how many times did you carry Mrs. Bagwell to Dr. Harris’ clinic? A. 20 trips.” On cross-examination, when interrogated as to how he had arrived at the exact number of trips, defendant testified: “I went to Harris’ records and Dr. Green’s records for these dates I give you just now.” % >{: ‡ ‡ ‡ >|e “Q. Do you have any''records besides the doctor’s records to refresh your memory ? A. I didn’t put the dates down every day we came. I am just taking the doctor’s records.” An attempt was made to corroborate this testimony of the defendant by the testimony of his wife, Mrs. W. M. Bagwell. This witness testified positively that she and her husband made at least 30 trips. But, on cross-examination, the witness admitted that her testimony was based upon the statement of her husband that he had procured the information from the doctors’ books. Dr. Green was called as a witness for defendant and testified that he did not remember Mrs. A. J. Bagwell as one of his patients. The doctor did remember Mr. and Mrs. W. M. Bagwell being in his office a number of times, but did not recall that they were with their mother. Dr. Green’s secretary, a Mrs. Clark, called as a witness for plaintiff, testified that she had examined Dr. Green’s records; that the name of Mrs. A. J. Bagwell appeared on his records only one time, although it was possible that she had made other visits. Both Dr. Green and Mrs. Clark testified positively that neither of them had furnished Mr. W. M. Bagwell with any information as to the number of times Mrs. A. J. Bagwell had been treated. Mrs. Riser, secretary to Dr. J. B. Harris, testified that she could find a record of only about six visits made by Mrs. A. J. Bagwell to Dr. Harris, but qualified this statement with the admission that Mrs. Bagwell could have been to Dr. Plarris for treatments on a number of other occasions upon which she might have paid cash, and, therefore, her name would not have appeared in the records. However, Mrs. Riser testified that she had not, and that neither she nor Dr. Harris could have given Mr. W. M. Bagwell information as to the exact number of trips made by Mrs. Bag-well to the office of Dr. I-Iarris. The testimony of the witnesses to which reference has been made thoroughly impeaches the testimony of the defendant, Bagwell, as to the source of his information fixing the number of trips made to the two doctors who treated-his mother, and renders his testimony on this point unworthy of belief. There can be no question but that the defendant and his wife on a number of occasions took his mother to Ruston for treatment by or consultation with one or the other of the doctors named. This fact may be held to have been established quite apart from the testimony of defendant and his wife by the testimony of neighbors who had seen them passing by on the way to or from Ruston, taken in connection with the testimony of the doctors’ secretaries that Mrs. Bagwell had visited the doctors’ offices a number of times. But, it must be borne in mind that plaintiff is suing for a fixed amount based upon a specific charge per trip, and the burden is upon him to establish the number of trips actually made. To arrive at an estimate or an approximation is not sufficient. Defendant asks in his reconventional claim recovery of a charge of $5 per trip. Pretermitting consideration of the question as to any number of trips actually established, it is necessary that defendant establish some acceptable basis for the charge made. This basis could only have been fixed by agreement with his mother, or, failing this, by proof of the value of the services rendered. Defendant asserted that his mother had agreed to the charge, but he completely failed in his attempt to establish this fact. The only evidence on this point was the testimony of defendant and his wife, and, again, we refer to extracts from the testimony of these two witnesses. On direct examination defendant testified: “Q. What did you charge for each trip, Mr. Bagwell? A. We made a charge of $5.00 per trip for our time and the use of our car and the time lost bringing her to Ruston. “Q. Was that agreeable to her? A. It was. She always sent for us to come and get her and bring her. “Q. She understood you were charging' her? A. Yes. Understood she would be glad to pay for the trips.” On cross-examination: “Q. How did you arrive at the figure of how much you would charge? A. My time or my wife’s time usually takes a half a day to come here and get a treatment, they are generally crowded, my time and my wife’s time and the use of the car I think a fair price would be $5.00 for half a day. “Q. Did you tell her Mama I am not going to charge you anything? A. Mother and I worked together quite a bit on those things. She always went the bill for almost everything she wanted. I was the only one available. Anything she wanted she would come to me. We never was unreasonable, neither one of us, but in harmony. “Q. During her lifetime did you ever present her a bill for $5.00 for bringing her to see the doctor? A. No. I usually just say Mother you can pay me whatever you want to.” Defendant’s wife testified that she never had any understanding, nor was she ever present with her husband when any agreement was made between him and his mother. These matters, according to the witness, were handled privately between her husband and his mother, and her only information was what her husband told her. With reference to the amounts claimed for nursing, the testimony of defendant and his wife followed the same vague pattern as their testimony with reference to charges for the automobile trips. No attempt was made to fix any fair value of the services claimed to have been rendered. The record is absolutely silent as to the value of the time of plaintiff and his wife, nor are we enlightened with reference to any details as to the actual nature of the services rendered which would justify the establishment of any value whatsoever. What the earnings of plaintiff and his wife may have been during this period, we do not know, and, therefore, the value of their time cannot be computed. Indeed, if we were even slightly inclined to sustain plaintiff’s claim, it would be necessary to remand this case for evidence as to the value of the services rendered before any equitable basis for a judgment could be found. Analyzing defendant’s case in support of his claims, we find that his attempt to establish the number of trips, which served as the basis for the major part of his claim, has utterly failed; his own testimony on this point has been discredited, and the little corroborative testimony of his wife has been determined to be hearsay. Defendant’s attempt to establish an agreement with his mother is based upon the weakest conceivable character of evidence, namely, the testimony of a son as to sporadic conversations with his deceased mother. Even defendant did not claim any definite understanding or agreement, but rested his testimony on the ground that his mother had agreed to pay anything he wanted to charge. It is clear to us that the charges for transportation and for nursing were arrived at by an. agreement, it is true, but an agreement between defendant and his wife, in which his mother had no part, and there is no proof she was informed as to any detail. The only remaining item in defendant’s list of claims is the sum of $7.94, claimed to be due for telephone charges made at the time of his mother’s death for the purpose of notifying her other children of her demise. We know of no theory under which this charge could be regarded as a proper claim against the estate of the decedent. These acts, which were, or certainly should have been, performed in response to the obligations of filial love prompted by ordinary feelings of respect, should not be considered as legal claims justifying reimbursement of the insignificant sum involved. Further, in support of this item, the record contains only the uncorroborated testimony of the defendant. For the reasons assigned, the judgment appealed from is amended by rejecting defendant’s reconventional demand, and, as amended, the judgment is affirmed. All costs of both courts to be borne by defendant.

DORE, Judge. On December 17, 1886, defendant and his father acquired forty acres of land situated in East Baton Rouge Parish for a recited consideration of $400; on December 13, 1890, defendant acquired his father’s undivided interest in the said land, for the recited consideration of $200. At the time of his acquisition, defendant was married to Georgiana Baker, thus making the property community property. On May 13, 1899, after a decree of separation from bed and board had been granted between Georgiana Baker and defendant they executed a notarial act of sale, for a recited cash consideration of $150, and transferred to Ronaldson & Puckett Co., Ltd., the said forty acres of land. After a decree of divorce between Georgiana Baker and defendant, on February 27, 1901, plaintiff and defendant were married. On October 21, 1902, Ronaldson & Puckett Co., Ltd., by notarial act of sale, for a recited cash consideration of $300, transferred to defendant the said forty acres of land. On May 14, 1942, plaintiff obtained a judgment of separation from bed and board against defendant. After obtaining the judgment of separation “a mensa et thoro”, plaintiff filed the present proceeding for a partition by Imitation of the properties comprising the preexisting community, alleging that the forty acres of land purchased by defendant from Ronaldson & Puckett Co., Ltd., on October 21, 1902, was community property. The defendant denies that the forty acres of land is community, setting forth that the deed of May 13, 1899, was purported and intended to be an act of mortgage or security to Ronaldson & Puckett Co., Ltd., for an account owed by the former community existing between himself and Georgiana Baker and was executed as a cash sale by him in error, neither he nor Georgiana Baker having received any consideration whatsoever, and that the deed executed on October 21, 1902, was a mere retrocession of the property to him, without changing the status of the property, he having been the owner prior to his marriage to plaintiff and never having divested himself of the possession and/or ownership thereof, and the retrocession was merely to clear the record and remove a cloud on his title. On the trial of the case, the defendant sought to prove by parol evidence the allegations of his defense. Timely objection was made thereto and overruled by the trial judge. The trial resulted in a judgment in favor of the defendant, holding that the 40 acres of land did not belong to the community existing between plaintiff and defendant and that therefore plaintiff had no interest in the said property and was not entitled to a partition thereof. From this judgment plaintiff has appealed. When defendant offered parol proof that the act of 1899 was confected through error, it appearing as a sale when he and his former wife believed it to be a mortgage given as security for the debt then owed by them to Ronaldso.-; & Puckett Co., Ltd., and that the act of 1902 was, after the payment of the debt then secured, a retro-cession thereof, without any effect on the status of the property, plaintiff objected to such proof for the reason that authentic acts make full proof against parties under Art. 2236 of our Civil Code, unless it be declared and proved a forgery, contending that nothing in the act of 1899 was contained therein showing it to be a “vente a réméré”, and that the sale of 1902 was an outright purchase for and on behalf of the community, which fact defendant was es-topped to show otherwise. Parol evidence is not admissible to vary, contradict, or add to the stipulations of a written contract (in our case, authentic acts of sale) complete on its face, in the absence of fraud or error. Revised Civil Code Articles 2234, 2236, 2276, and case of Clark’s Ex’rs v. Farrer, 3 Mart., O.S., 247, and many others hereafter too numerous to list or mention. A written instrument is only binding on parties and privies to it, and third persons are not estopped from assailing or contradicting its recitals — Succession of Murray, 41 La.Ann. 1109, 7 So. 126. The rule against parol evidence may be invoked by any one having an interest, and not alone by the person sought to be held on an agreement. Cooper v. Jennings Refining Co., 118 La. 181, 42 So. 766. The rule that parol evidence is inadmissible to contradict or vary the terms of the writing which the parties have drawn up to serve as the evidence of their contract applies only in suits between the parties to the instrument and their privies. The question of the admissibility of parol evidence to contradict the written act resolves itself therefore as to whether the suit is between parties privy to the acts. A “privy” is one who has succeeded' to some right or obligation which one of the parties to the act derived through the act or incurred under it. The plaintiff is not a privy to the act of 1899 and is not concerned therewith nor with the parol evidence rule relating thereto, but is a privy to the act of 1902, because she was the wife of the defendant at that time, and the acquisition of 1902 is presumed to belong to the community. See Bank of Acadia v. Lafosse, S La.App. 616. The plaintiff therefore is only concerned with the effect of the act of October 21, 1902, hence the only question presented to us for determination is whether or not parol evidence can be introduced to vary, contradict, or alter the recitals of that deed. At the time of the confection of the act of October 21, 1902, plaintiff and defendant were married. The act of conveyance is authentic in form and recites that it was made for a cash consideration of $300 paid by the defendant and in no manner recites or discloses the history of the transaction by which the property had been formerly transferred to the vendor, Ronaldson & Puckett Co., Ltd., by the vendee. and his former wife, Georgiana Baker, and the acquisition of the defendant as a retro-cession by him for his separate estate and benefit and for his former wife, the property prior to the act of sale of May 13, 1899, being then owned in indivisión of one-half (%) to each, so as to indicate the nature of the consideration and/or the status of the property; nor is there any recitation in the deed that the acquisition by defendant was being made with his personal funds or other property belonging to him and that the property was being acquired for his personal and separate benefit. The act is a regular warranty deed executed in his favor without the mention of his former wife’s interest, translative of property, and for a stipulated cash consideration of $300, paid by him. Under Article 2334 of our Civil Code, “Separate property is that which either party brings into the marriage, or acquires during the marriage with separate funds, or by inheritance, or by donation made to him or her particularly.” Under Article 2402, of our Civil Code, it is declared that the community of acquets and gains “consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase.” Under this Article, C.C. 2402, the presumption of law is that property bought during marriage in the name of either spouse falls into the community. This presumption can be rebutted when the purchase is made by the wife, but, said the "Supreme Court, through Justice Blanchard, in the case of Succession of Burke, 107 La. 82, 31 So. 391, 392, “when the husband, during the marriage, buys property in his name, intending it as an investment of his separate funds, to be held for his individual account, and not that of the community, it is essential that some indication of this intention, and of the character of the fwids used, be given in the act of purchase. For the reasons of the law for the distinction made in this regard between purchases in the name of the wife and those in the name of the husband, see Hero v. Bloch, 44 La.Ann. [1032], 1036, 11 So. 821.” (Italics ours.) It is clearly indicated by the above that the- deed must make full proof and that parol evidence would be inadmissible to rebut the presumption of law that the property is community. In the case of Sharp v. Zeller, 110 La. 61, 34 So. 129, it was held that, syllabus 1, “In order that property purchased by the husband during the community should become his separate property, he must, in his act of purchase, have made the double declaration: First, that it is bought with the proceeds of a sale of property belonging to himself individually. Second, that the purchase is made for his individual account, for the purpose of replacing the individual property which he had sold (pour servir de remploi).” (italics ours), citing with approval the cases Hero v. Bloch and Succession of Burke, supra. In the case of McWilliams v. Stair, 128 La. 752, 55 So. 343, it is clearly pointed out that the husband, while living with his wife in community, must manifest a clear and distinct intention in the act by which property is acquired that such acquisition is made with separate funds for his separate estate, otherwise, it becomes a part of the community. In the Succession of Andrus, 131 La. 940, 60 So. 623, 624, it is stated: “Jurisprudence has construed this article (Civil Code 2402) so as to except purchases by the wife, in her own name, with her paraphernal funds, which were at the time administered by her separately and apart from her husband. Stauffer, Macready & Co. v. Morgan, 39 La.Ann. [632], 633, 2 So. 98. And also to except purchases by the husband in his own name, with his separate funds, when he, in the act of purchase, makes the double declaration that the property is bought with the proceeds of the sale of property belonging to himself individually, and that the purchase is made for his individual account, for the purpose of replacing the individual property which he had sold”, citing the cases of Sharp v. Zeller, McWilliams v. Stair, supra. (Italics ours.) Later cases which follow the cases discussed are Succession of Goll, 156 La. 910, 101 So. 263; Succession of Watkins, 156 La. 1000, 101 So. 395; Succession of Fay, 161 La. 1022, 109 So. 824; Schoeffner v. Schoeffner, 163 La, 142, 111 So. 655; Smith v. Gloyd, 182 La. 770, 160 So. 617; and including the very late cases of Sanderson v. Frost, 198 La. 295, 3 So.2d 626, and Succession of Farley, 205 La. 972, 18 So.2d 586. In the recent case of Sanderson v. Frost, supra [198 La. 295, 3 So.2d 631], the rule of law relative to the presumption of community was stated thus: “But, when a married man buys property in his name, without a stipulation in the deed that it is bought with his separate funds, the presumption in favor of 'the community is juris et de jure,” citing many cases, including those mentioned supra. In the case of Succession of Andrus, supra, it was said: “As the title of Joseph Christ does not on its face indicate any intention to reinvest his separate funds for his separate benefit, the purchase in question must be considered as having been made for the. benefit of the community. “The parol evidence adduced in the court below to prove the intention of the huband to reinvest his separate funds for his individual benefit should have been excluded.” This case is cited with approval in the case of Sanderson v. Frost, supra. Furthermore, it is stated in the case of Succession of Farley, supra [205 La. 972, 18 So.2d 588], that “when the title * * * is taken in the name of the husband, without a declaration in the deed that it is bought with his separate funds and as his separate property, the presumption that the title is vested in the community is juris et de jure, and thereafter ccmnot be contradicted by him to the prejudice of his wife or of her heirs” (italics ours), which tacitly upholds the decision of the Succession of Andrus, supra, relative to the question that parol evidence is inadmissible to vary, contradict or alter the notarial act of October 21, 1902. The case of Schoeffner v. Schoeffner, supra, involved litigation between husband and wife arising out of the dissolution of the community of acquets and gains by a judgment of separation “a mensa et thoro”. The defendant husband, during the marriage, had acquired certain real property under a deed which recited a cash consideration. In reality, however, the property described was obtained in settlement of his claimed interest in the estate of his deceased sister. The Supreme Court held that the real estate was an acquisition of the community, stating “As stated, instead of reciting the facts to show the real consideration, the deed on its face shows a cash consideration. The property therefore must be regarded as an acquisition of the community.” Viewing the deed of October 21, 1902, in the light of the aforesaid authorities, we hold that the parol evidence adduced in the court below to prove that the said deed was merely a redemption deed should have been excluded, and we further hold that the property described in the deed must be deemed to be that of the community. We say, as did the Supreme Court in the Schoeffner case, that a different situation might be presented if this deed had recited the true status of the transaction and' had been made on behalf of the vendors of the Act of May 13, 1899, rather than merely on behalf of the defendant. We are further strengthened in our holding in that to hold otherwise would mean the introduction of parol evidence so as to show that the property was redeemed for the benefit of not only the defendant herein, but also for Georgiana Baker, unquestionably a half owner of the property prior to the execution of the Act of May 13, 1899. It has long ago been recognized, and the rule is now firmly established by numerous decisions of the Supreme Cojirt, that though parol evidence is admissible, where fraud or error is charged, to show that a sale is not real, it is under no circumstances admissible to show that the vendee was in reality some other person than the person named in the sale, or that some other person had an interest therein. See Hodge v. Hodge, 151 La. 612, 92 So. 134; Hanby v. Texas Co., 140 La. 189, 195, 72 So. 933, and a long list of decisions therein cited. Defendant has failed to offer any written evidence to show that the act of 1902 was a retrocession tp himself and Georgiana Baker. The act is regular on its face and has the effect, at least ns far as plaintiff is concerned, of placing the title in defendant on October 21, 1902. However, the defendant may be entitled to claim the value of his undivided half (%) interest in the property at the time of the execution of the sale of Oct. 21, 1902, subject however to his indebtedness at the time of his marriage to plaintiff, and such rights will be reserved to both parties litigant. For these reasons assigned, the judgment of the lower court is avoided and reversed in so far as it decrees the property in contest forms no part of the community. It is now ordered, adjudged and decreed, that the said judgment, in so far as the property in contest, be recast so as to read as follows: It is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Florence Ella Baker, and against the defendant, Louis Phillip Baker, decreeing that said forty-acre tract of land described in plaintiff’s petition as follows, to-wit: “A certain tract or parcel of land together with the buildings and improvements thereon, located near Wards Creek and about seven (7) miles from the City of Baton Rouge, containing forty (40) acres, in the Southern portion of the Phillip Englehart tract laying and being in Section 56, T 7. S., R. i. E, and Section 59, T. 8. S, R. i. E., said tract having a front of one (1) acre more or less, and to run between parallel lines so as to include forty (40) acres being bounded north by Burden, east by Gayle, south by McIntosh, and west by Baker, being the same property acquired from Ronaldson & Puckett, Co., Ltd., by áct recorded in Book 28, page 400 on the 21st day of October, 1902,” forms a part of the community estate existing between the plaintiff and defendant and is subject to partition, reserving, however, unto defendant the right to claim the value of his undivided one-half (%) interest of date of October 21, 1902, less that which he owed Ronaldson & Puckett Co., Ltd., on February 27, 1901, the date of his marriage to plaintiff, and a's thus amended the judgment stands affirmed, the defendant to pay all costs incurred by these proceedings.

O’NIELL, Chief Justice. The appellant was convicted of killing squirrels out of season, in violation of a parish ordinance, and was sentenced to pay a fine of $25 and the costs of court or be imprisoned in the parish jail for 30 days. In a motion to quash the bill of information, and again in a motion for a new tiial and a motion in arrest of judgment, the defendant pleaded that the parish ordinance was unconstitutional, for several reasons which we find it unnecessary to consider. He pleaded also that in any event the ordinance was illegal because it was so worded as to have no meaning or effect. The motions were overruled. This court has jurisdiction of the question of constitutionality or legality of the ordinance, under the provision in Section 10 of Article VII of the Constitution that the Supreme Court shall have appellate jurisdiction in all cases “where the legality, or constitutionality of any fine, forfeiture, or penalty imposed by a parish, municipal corporation, board, or subdivision of the State shall be in contest, whatever may be the amount thereof.” The charge. in the bill of information, stated specifically, is that on the 1st day of October, 1944, the defendant “did unlawfully hunt and take six squirrels during the closed season, contrary to the provisions of Ordinance 202 of the Police Jury of Concordia Parish”. Under the state law the 1st day of October was within the open season for hunting squirrels. In Section 1 of Article III of Act 273 of 1926, being Section 2947 of Dart’s General' Statutes, the annual open season for hunting squirrels is from October 1st to January 15th; and, according to Section 1 of Article I of the act, being Section 2925 of Dart’s General Statutes, the term “open season” includes the first and the last of the two days mentioned. Hence the defendant is not accused of violating the state law. The ordinance purports to “curtail” the season for hunting squirrels, or deer open or bear, as fixed by the state law, but does not give the extent of the curtailment, or indicate whether it shall be cut off from the beginning or from the end of the open season, from October 1st to January 15th.. The first section of the ordinance, adopted on April 14, 1943, reads as follows: “Section 1. Be it ordained by the Police Jury of the Parish of Concordia, State of Louisiana, in lawful session convened, that the open seasons for the hunting and taking of wild deer, bear and squirrels within the boundaries of the Parish of Con-cordia, State of Louisiana, are hereby curtailed for the open seasons of 1943-1944, the open seasons of 1944-1945, and the open seasons of 1945-1946, it being apparent that a curtailment of the open seasons so that such game life may restock themselves by natural breeding is necessary, and written consent having been given by the Conservation Commissioner of the State of Louisiana to the Police Jury of the Parish of Concordia, to adopt this ordinance.” The second section of the ordinance imposes the penalty, — a fine not less than $25 or more than $100, or imprisonment for a period not exceeding 60 days, or both the fine and imprisonment; the third section repeals all ordinances in conflict with Ordinance No. 202; and the fourth or last section provides that Ordinance No. 202 shall become effective after promulgation in the official journal of the parish, once a week for four consecutive weeks. Such promulgation is required by the third paragraph of Section 15 of Article I of Act 273 of 1926, Section 2939 of Dart’s General Statutes. Ordinance No. 202 was adopted under authority of that section of the statute, which section reads as follows: “Section 15. The Police Jury of any parish may apply to the Conservation Com-' missioner for the right to adopt an ordinance to curtail the open season in such parish, or any part thereof, when it becomes apparent that the game bird and game quadruped life are in need of a curtailment of the open seasons so that such game life may restock themselves by natural breeding. “Upon receipt of such application and if conditions indicate the need of adding protection for any game oil'd or game quadruped or all of them, the Commissioner may give written consent !o the police jury of the parish to adopt, in their discretion, an ordinance to curtail the open season, but for not more than three consecutive years, which curtailment shall apply to everyone, including the residents of such parish. “Such curtailment shall become effective only after notice of the adoption of such ordinance shall have been promulgated by the police jury, in the official parish journal, once a week for four consecutive weeks prior to the regular annual open seasons for hunting. Annual special parish close seasons on the game birds and game quadrupeds shall commence on the legal date of the open seasons in each year.” The argument for the prosecution is that the ordinance abolished the three open seasons, namely, the open season from October 1, 1943, to January 15, 1944, and the open season from October 1, 1944, to January 15, 1945, and the open season from October 1, 1945, to January 15, 1946; and that, in that way, the ordinance suspended altogether the right to hunt wild deer, bear or squirrels for the period of three years. The ordinance does not read that way, or convey any such meaning. According to Webster’s New International Dictionary, 2 Ed., unabridged, the word “curtail” means “to cut off the end, or any part, of; hence to shorten; abridge; diminish; lessen; reduce.” The word “abolish” or the word “suspend” is not given in the dictionaries as one of the definitions of the word “curtail”. In fact, in common parlance, or in law composition, the word “curtail” has no such meaning as “abolish”. The ordinance declares that the three open seasons which are thereby declared curtailed are the open season of 1943-1944,- — meaning from October 1, 1943, to January 15, 1944; and the open season 1944-1945, — meaning from October 1, 1944, to January 15, 1945; and the open season 1945-1946, — meaning from October 1, 1945, to January 15, 1946. To declare that these three open seasons, 1943-1944, 1944-1945, and 1945-1946, “are hereby curtailed”, without indicating how, or the extent to which, they are “curtailed”, means nothing. Conceding, for the sake of argument, that the authority given by the statute, to each parish, “to curtail the open season, but for not more than three consecutive years”, includes the authority to “abolish” the open season for a continuous period not exceeding three years, the ordinance in this instance does not purport to “abolish” the open season for the three consecutive years, or to suspend the right to hunt wild deer, bear or squirrels for the continuous period of three years. If the author of the ordinance intended to abolish the open seasons for hunting wild deer, bear and squirrels for a period of three years, he need not have specified the three annual open seasons, 1943-1944, 1944-1945, and 1945-1946; nor should he have used the word “curtail”, with reference to the three annual open seasons, and without indicating the extent of the curtailment. It would have been an easy matter to word the ordinance so as to have no open season for hunting wild deer, bear and squirrels in the parish for a period of three years, if the police jury intended — and if the statute gave the authority to the police jury — to suspend the right to hunt wild deer, bear and squirrels in the parish for a period of three years. The concluding sentence in Section 15 of the statute leaves no doubt that, in conferring upon the parishes the authority to curtail, locally, the open hunting seasons established by the state law, the lawmaker intended that any such curtailment that might be made by a parish ordinance should be made by postponing the beginning — and not by cutting off the tail end— of the State’s open season. That sentence reads as follows: “Annual special parish close seasons on the game birds and game quadrupeds shall commence on the legal date of the open seasons in each year.” The term “annual special parish close season” means that part of the statutory open season which a parish has seen fit to close, locally, by a police jury ordinance. Hence the declaration that “Annual special parish close seasons * * * shall commence on the legal date of the open seasons in each year” means that any curtailment that a parish may see fit to make, of the statutory open season, must be measured from the beginning of the statutory open season. For example, if a parish sees fit to curtail the statutory open season for hunting squirrels, the concluding sentence in Section 15 of the statute requires that.the curtailment- — -which is called the annual special parish close season— shall commence on the 1st day of October, and not on any day between that date and the 15th day of January. It may be conceded, for the sake of argument, that the police jury of a parish could abolish locally a state-wide open season by “curtailing” it out of existence; because the statute does not impose any time limit upon the so-called-“annual special parish close seasons” which a parish may adopt, — except that a parish shall not curtail more than three of the annual open seasons consecutively. But, if a parish does not have the authority, and does intend, to abolish locally a statutory open season — or to abolish two or three of such open seasons in a row — the ordinance which is adopted to effect that purpose must declare definitely that the open season is abolished — or that the two or three open seasons are abolished — or declare something more definite than the mere pronouncement that the three' open seasons are “curtailed”. Having concluded that Ordinance No. 202 is invalid because of its being meaningless and therefore unenforceable, we find it unnecessary to pass upon the several pleas of unconstitutionality, made in the defendant’s motion to quash the bill of information, in his motion for a new trial, and in his motion in arrest of judgment. The conviction and sentence are annulled and the prosecution of the defendant is ordered dismissed.

HIGGINS, Justice. Frank B. Treat instituted this action to be declared the owner of an undivided one-eighth interest in and to the oil, gas, and other minerals underlying the land described as the S% of the SE1^, Section 18, Township 21 N., Range 9 West, in Webster Parish, Louisiana, under a deed from Sidney Turner to him, dated April 30, 1938, and for an accounting of the proportionate part of the royalties accruing to him. The defendants, A. D. Turner and W. R. Lunsford, adverse claimants of the one-eighth mineral interests, aver that Treat’s author in title, Sidney Turner, on April 30, 1938, when he sold to Treat, had previously conveyed this mineral interest in the land to the defendants’ author in title, P. F. Childs, on February 19, 1937, and, therefore, the defendants and not the plaintiff were the lawful owners of the mineral interest in controversy. The defendant, Hunt Oil Company, the mineral lessee and the purchaser of the oil produced from this tract of land, interposed the same defense. The defendant W. R. Lunsford, who purchased a one-sixteenth mineral interest in the land or one-half of the one-eighth mineral interest in litigation, on December, 14, 1940, from A. D. Turner, called his vendor in warranty to defend his title, and prayed, in the event it be decreed that he was not the owner of the one-sixteenth mineral interest claimed, he be granted a judgment against his vendor for the sum of $1,500 cash, the purchase price thereof. There was judgment in favor of the plaintiff and against Turner and Lunsford, recognizing and decreeing the plaintiff to be the owner of the undivided one-eighth mineral interest in question and for an ac counting for the royalty accruing under this interest resulting from the production of oil from the land under the lease and the sale thereof to the Hunt Oil Company. There was judgment also in favor of Luns-ford and against Turner under the call of warranty for $1,500, and the rejection of Turner’s demand against Lunsford for credit for the royalty paid him as the owner of the one-sixteenth mineral interest. The defendants appealed. It is conceded that the facts found by the trial court are correct and they are substantially stated as follows: P. F. Childs and Charley Childs jointly and in equal proportions owned the fee simple title to the S% of the SE1^ of Section 18, Township 21 N.,-Range 9 W., in Webster Parish, Louisiana. On March 7, 1936, Charley Childs sold his one-half interest therein to Bobby Turner without any mineral reservation. On August 27, 1936, Bobby Turner and P. F. Childs, as joint and equal owners of the fee simple title to the property, conveyed one-fourth of all of the oil, gas and other minerals on, in, and under the tract of land to Sam York. On September 1, 1936, Bobby Turner conveyed to Sam York one-eighth of all of the oil, gas, and other minerals on, in, and under the> land. On November 13, 1936, Bobby Turner conveyed to Sidney Turner his undivided one-half interest in the tract of land, without any mention of the prior mineral sales. On February 15, 1937, Sam York reconveyed to Bobby Turner the same one-eighth mineral interest in the land which he had previously acquired on September 1, 1936 from Bobby. Turner. On February 19, 1937, Bobby Turner conveyed to Sidney Turner a one-eighth mineral interest in the land. As a result of the previous transactions, on February 19, 1937, Sidney Turner and P. F. Childs were the joint and equal owners of the land, less the one-fourth mineral interest therein, which ,had been conveyed previously by Bobby Turner and P. F. Childs to Sam York on August 27, 1936. On February 19, 1937, Sidney Turner conveyed to P. F. Childs “his undivided one-half interest in and to” the land with the following reservation: “The said vendor, Sidney Turner, reserving unto himself, his heirs and assigns, one-fourth of the oil, gas and other minerals in, on and under the said described property.” (This is the deed which must be interpreted herein.) On February 19, 1937, P. F. Childs conveyed to Charley Childs a one-eighth interest in the minerals under the land. On April 9, 1938, and on April 16, 1938, Charley Childs in two separate sales of a one-sixteenth mineral interest each, sold and transferred his one eighth mineral interest to Frank B. Treat, the plaintiff herein. On April 12, 1938. Sidney Turner conveyed to Frank B. Treat an undivided one-eighth mineral interest in the land and again on April 30, 1938, conveyed another one-eighth mineral interest therein to Frank B. Treat. It is this last sale made by Sidney Turner to Frank B: Treat on April 30, 1938, conveying a one-eighth mineral interest under the land, which is in contest here. The Hunt Oil Company, the owner of'an oil, gas and mineral lease covering this tract of land, refused to recognize the validity of this one-eighth mineral interest conveyed by Sidney Turner to Frank B. Treat on April 30, 1938, taking the position that Sidney Turner did not own any further mineral interest in the land on that date. Briefly, when Sidney Turner made the sale of the one-eighth mineral interest to Frank B. Treat on April 12, 1938, he thereby divested himself of all of his remaining ownership in the minerals in the land. On December 14, 1940, A. D. Turner, one of the defendants; purchased from P. F. Childs the one-eighth mineral interest in controversy. A. D. Turner then conveyed an undivided one-sixteenth mineral interest in the land, or one-half of the above one-eighth mineral interest, on July 1, 1941, for $1,500 cash, to W. R. Lunsford, one of the defendants herein. The Hunt Oil Company paid A. D. Turner and his transferee, W. R. Lunsford, the royalties due for this one-eighth mineral interest, by virtue of a mineral deed in Turner’s favor from P. F. Childs, dated December 14, 1940. This deed contains the following provision: “It is further agreed and understood between the parties hereto that this mineral purchase as above described, shall only come out of the undivided one-half interest in and to the property above described which was acquired by P. F. Childs from Sidney Turner, as above described, and in the event that this one-eighth interest is not owned by this vendor herein out of that particular part purchased from Sidney Turner, that then, and in that event, and in that event only, the vendor herein will refund to the vendee herein the purchase price and no more.” The question for consideration, in the light of the facts of the case and the law, narrows down to the proper construction to be placed upon the general granting clause in the deed and the mineral reservation made by Sidney Turner when he sold his undivided one-half interest in the title to the land to P. F. Childs on February 19, 1937. On that date, it is not disputed that Sidney Turner owned an undivided one-half interest in the fee simple title and an undivided three-eighths interest in the minerals. This is true because Bobby Turner and P. F. Childs, the joint and equal owners of the fee simple title, sold to Sam York, on August 27, 1936, the one-fourth mineral interest. The defendants contend that when Sidney Turner reserved a one-fourth interest in the minerals on February 19, 1937, in the land, he legally, by that same deed, warranted title to the other one-fourth mineral interest in the land and, therefore, when the second mineral sale was made to Frank B. Treat on April 30, 1938, of one-eighth of the minerals therein, the conveyance was null and void, because at that time he was no longer the owner of any mineral interest in the land, having fully divested himself of all mineral interests therein by the previous sales and conveyances, notwithstanding the express reservation of one-fourth of the minerals in, on and under the described property. It will be observed that when P. F. Childs and Bobby Turner, the owners of the fee simple title to the property, dismembered their complete ownership thereof to the extent of alienating a one-fourth mineral interest to Sam York on August 27, 1936, Childs knew that he and his co-owner were each then entitled to one-half of the surface rights and three-eighths of the mineral interest therein, respective^. When Bobby Turner, on November 13, 1936, conveyed to Sidney Turner his undivided one-half interest in the tract of land, without any mention of the prior registered mineral sales, it was impossible for Sidney Turner to acquire under this transfer a one-half interest in the minerals, because P. F. Childs and Bobby Turner had previously conveyed, by a registered deed, a one-fourth interest in the minerals to Sam York. Therefore, on February 19, 1937, when Sidney Turner sold to P. F. Childs “his undivided one-half interest in the described property” or land with the express reservation of one-fourth of the minerals therein, P. F. Childs knew that Sidney Turner was conveying to him the title to one-half of the surface rights and a one-eighth mineral interest in the land, under the general granting and warranty clauses of the deed, because he was apprised of the fact at that time Sidney Turner, having reserved one-fourth of his three-eighth mineral interest therein, had only the one-eighth mineral interest which he was conveying. Consequently, it cannot be said that P. F. Childs, with such actual knowledge that he had, contemplated receiving a one-fourth mineral interest in the land by virtue of the general granting and warranty clauses thereof. He certainly cannot be treated as an innocent person, who bought in good faith and paid a consideration for an undivided one-half of the land and one-fourth mineral interest in it. Whatever possible doubt might have existed as to the intention of P. F. Childs in making this acquisition is certainly eliminated by the provision that he placed in the mineral deed in favor of A. D. Turner on December 14, 1940. There, he unmistakably shows that he was more than dubious that he had acquired from Sidnev Turner, in view of the express one-fourth mineral reservation, a greater mineral interest than one-eighth in the land. If he had thought that he was acquiring a one-fourth mineral interest under that deed, he certainly would not be the first one to doubt his own title to it, as he unquestionably did by placing the referred to provision in the registered deed of December 14, 1940. It was the actual knowledge that he had of the outstanding one-fourth mineral interest in favor of Sam York that made him take notice of the fact that it was impossible for Sidney Turner to reserve a one-fourth mineral interest in the land, and, at the same time, grant him, P. F. Childs, a one-fourth interest, because Sidney Turner only had a three-eighths mineral interest on that date. P. F. Childs was not only aware of the fact that his title to this additionally claimed one-eighth mineral interest was not well founded, but he also informed his vendee, A. D. Turner, of the situation, for the parties to that sale agreed therein that in the event P. F. Childs was not the owner of this one-eighth mineral interest, the purchase price only would be refunded. In short, P. F. Childs protected himself by placing A. D. Turner on guard against this contingency and, therefore, A. D. Turner cannot be said to be an innocent purchaser without knowledge. The same is true as to W. R. Luns-ford. He obtained no better title than his vendor. It is our opinion that P. F. Childs di'd not consider that he was acquiring a one-fourth mineral interest in the land by virtue of the sale to him by Sidney Turner on February 19, 1937, but it was the intention of both parties, clearly and unambiguously expressed,, that Sidney Turner would remain the owner of a one-fourth mineral interest in the property under the reservation clause therein contained; and that A. D. Turner and his vendee, W. R. Luns-ford, are in no better position as against Frank B. Treat and his author in title, Sidney Turner, because of the express provision placed by Childs in the deed that if he were not the owner that the vendee would only recover the purchase price. United Gas Public Service Co. v. Roy, La.App. 147 So. 705; Shoreline Oil Corporation v. Guy et al., La.App., 189 So. 348-352; 16 Tulane Law Review, 152; Karcher et al. v. Karcher et al., 138 La. 288, 70 So. 228; Liles v. Pitts, 145 La. 650, 82 So. 735; Reliance Homestead Ass’n v. Brink, 173 La. 331, 137 So. 52; Gaines v. Crichton, 187 La. 345, 174 So. 666; and Reynaud v. Bullock et al., 195 La. 86, 196 So. 29. Counsel for the defendants rely upon Young et al. v. Sartor, et al., 152 La. 1064, 95 So. 223. In that case the plaintiffs purchased a plantation from the • defendants under the representation that there was ■sufficient timber on the land to supply a pumping machine for ten years. It developed that the defendants had previously sold the timber to a third party, who removed it, under its previously registered deed. The plaintiffs sued the defendants for damages and proved that -they had paid the full price for timbered land. Upon showing that the value of the timber on the land sold to them was worth $4,000, the court awarded them that amount in damages. The prior registered sale to the purchaser of the timber gave it a superior right thereto over the subsequent purchaser of the land. But, as between the original parties to the deed to the plantation, the vendors had sold the innocent vendees without any notice or knowledge of the previous sale of the timber something that the vendors did not then own, and, conse-' quently, were liable to the plaintiffs, who had paid a consideration for the timber which the defendants were unable to convey to them. Obviously, the case is not in point here where the record shows that P. F. Childs, defendant’s author in title, knew of the outstanding one-fourth mineral interest in favor of Sam York under his own deed and the one-fourth mineral interest in favor of Sidney Turner under his own deed containing the express reservation, and in his act of alienation informed his transferee of his uncertainty as to the title to this mineral interest. Having reached the conclusion that P F. Childs is not the owner of the undivided one-eighth mineral interest in controversy, it is our opinion that the trial judge properly sustained the call in warranty and ordered an accounting. A. D. Turner’s contention that he is entitled to offset the royalty payments received by his vendee, W. R. Lunsford, against the $1,500, or purchase price, is without merit because Lunsford would be liable to the Hunt Oil Company for the royalty payments erroneously made to him. For the reasons assigned, the judgment appealed from is affirmed; the costs of both courts to be paid by the defendants; W. R. Lunsford to be reimbursed his pro rata share of the costs of court under his call in warranty against A. D. Turner.

Q’NIELL, Chief Justice. This is a suit for compensation under the Employers’ Liability Act. The suit is brought against the employer alone, who does not carry employers’ liability insurance. The defendant, without answering the petition, filed a pica of prematurity and an exception of no cause or right of action. The judge of the district court maintained both the plea of prematurity and the exception of no cause or right of action, on the face of the pleadings, and dismissed the suit at the plaintiff’s cost. The Court of Appeal for the First Circuit affirmed the judgment maintaining the plea of prematurity and dismissing the suit at the plaintiff’s cost. Thornton v. E. I. du Pont de Nemours & Company, 15 So.2d 543. The case is before us on a writ of review granted at the instance of the plaintiff. The question is whether an injured employee may sue to have the amount of his workmen’s compensation fixed by a judgment of court, in order to prevent the loss of his claim by prescription, while the employer continues paying his regular wages. The paragraphs in the plaintiff’s petition, on which the defendant based its plea of prematurity and exception of no cause or right of action, are as follows: “That during all of this time [from the date of the accident], and even up to the present time [of the filing of the suit], petitioner has been retained upon the payroll of the said employer, but that he has been unable to do the work of a rigger [which he was doing up to the time of the accident], which requires climbing, picking up and carrying heavy objects, straining and hard manual labor generally, and requires the free and full normal use of both arms and both legs. “That petitioner has been incapable of doing any of this work, or of undertaking any kind of manual labor, which is the only work for which he is trained and fitted, but that he has been retained upon the payroll of the said employer at the same salary under a medical slip which has required him to perform only light duties. H* % ‡ * * “Petitioner shows that he has been paid no compensation whatever by the employer since the date of the accident, and that he was earning at the time $1.37]/2 per hour upon the basis of an eight-hour day and five days per week, and that thus he is entitled to maximum compensation in the sum of $20.00 per week for a period not to exceed 400 weeks. ***** “Petitioner shows that said employer has treated petitioner fairly in every way, and that if it had not been for the sympathetic support and co-operation which he has received petitioner would have been unable to remain upon the job and to earn the substantial income which he has received since the accident, and indeed would have been unable to pass any industrial examination or to undertake any kind of reasonable work and employment for which he is in any sense trained and fitted.” It is admitted in the defendant’s plea of prematurity that the defendant paid the plaintiff his weekly wages regularly and continuously from the date of the accident, February 3, 1942, to the date of the filing of this suit, February, 2, 1943. And it is alleged in the defendant’s plea of prematurity that, although it does not appear in the plaintiff’s petition that the defendant paid the plaintiff compensation, it is nevertheless a fact that on February 8, 1943, that is, on the 6th day after the suit was filed, the defendant ceased paying the plaintiff weekly wages, and, on February 9, 1943, began paying him workmen’s compensation at the maximum rate of $20 per week, intending to continue these payments during the period of his disability, as shown by a copy of a letter sent by the defendant to the plaintiff on February 9, 1943. The «defendant averred in the plea of prematurity: “That, therefore, there is not presently existing any dispute between the plaintiff and defendant, this exceptor, which entitles plaintiff to institute and prosecute this suit.” The defendant alleged also in the plea of prematurity: “That, moreover, since defendant has actually placed plaintiff on workmen’s compensation, as aforesaid, it cannot at this time plead the prescription referred to in plaintiff’s petition, and particularly in paragraph 12 thereof.” The prescription referred to in paragraph 12 of the plaintiff’s petition and in the defendant’s plea of prematurity is the prescription of one year, provided for in Section 31 of Act No. 20 of 1914 as amended and re-enacted by Act No. 85 of 1926 and by Act No. 29 of 1934, — thus: “Section 31. That in case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the ac cident or death the parties shall have agreed upon the payments to be made under this act or unless within one year after the accident proceedings have been begun as provided in Sections 17 and 18 of this Act. Where, however, such payments have been made in any case, said limitations shall not take effect until the expiration of one year from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitations shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the said proceedings have been begun within two years from the date of the accident.” The plaintiff avoided the danger of a plea of prescription by filing this suit on the last day before the year would have expired, from the date of the accident. The allegation in the twelfth paragraph of the petition reads as follows: “That the filing of this suit is made necessary by the fact that one year will have soon elapsed since the date of said accident without the said employer having paid petitioner any sum of money whatever as compensation, and that after the lapse of one year unless the suit is filed in the meantime a serious question might be presented as to whether or not petitioner’s claim is prescribed.” In the letter which the defendant wrote to the plaintiff on February 9, 1943, and of which a copy is annexed to and forms part of the defendant’s plea of prematurity and exception of no cause or right of action, the defendant acknowledged that the reason why the plaintiff’s services with the defendant company were terminated on the 8th of February was that he had filed this suit against the company for workmen’s compensation. The pertinent paragraphs of the letter read as follows: “This will confirm our verbal conversation of yesterday during which I notified you, in behalf of E. I. du Pont de Nemours & Co., that in view of your having filed suit against the company for workmen’s compensation in the matter entitled Carl K. Thornton v. E. I. du Pont De Nemours & Co., No. 19,463 on the docket of the Nineteenth Judicial District Court of the S^,te of Louisiana, within and for the Parish of East Baton Rouge, your services with the company were terminated as of the 8th instant. “Effective as of today, we are placing you on workmen’s compensation at the rate of Twenty Dollars ($20.00) per week during the period of your disability as provided by the laws of this state. Your compensation payments will be imide at our regular payroll periods, the time of which periods you are familiar. Your first compensation payment will be due and payable February 26th, 1943. * * * * * “Our placing you on workmen’s compensation is not to be construed as an admission on the part of the du Pont Company that you are permanently and totally disabled as alleged in your petition.” This protestation, which we have quoted from the letter written by the defendant to the plaintiff on the 9th of February, 1943, shows that the defendant was not willing, even then, six days after the suit was filed, to admit that the plaintiff was entitled to the maximum compensation which he was claiming. The judge of the district court and the judges of the court of appeal rested their judgment, maintaining the plea of prematurity, upon Subsection 1(B) of Section 18 of the Employers’ Liability Act, as amended by Act No. 85 of 1926; which subsection — as we read it — has reference to cases only where the employer pays the compensation due to the injured employee —or to his dependents in the case of a fatal injury. Subsection 1(B) reads as follows : “U-nless in the verified complaint above referred to [in Subsection 1(A) of Section 18] it is alleged (where the complaint is filed by the employee or his dependents) that the employee or the dependent is not being or has not been paid, and that the employer has refused to pay, the maximum per cent of wages to which petitioner is entitled under the provisions of this act, the presentation of [or] filing of such complaint shall be premature and shall be dismissed; when such allegation is contained in such complaint and is denied by the employer at the time fixed for the hearing thereunder by the court, if it be shown that such allegations are without reasonable cause or reasonable toundation in fact, said complaint shall be dismissed; and the question of whether or not such allegation of non-payment is justified under the facts shall be determined by the Court before proceeding with the hearing of the other issues involved.” Subsection 1(B) of Section 18, therefore, does not justify the dismissal of this suit on the face of the plaintiff’s petition, because he does allege “that he has been paid no compensation whatever by the employer since the date of the accident”, and he repeats that the employer has not “paid petitioner any sum of money whatever as compensation”. He showed that the year from the date of the accident would expire on the next day after the filing of his petition and therefore that it was necessary that his suit should be filed on that day in order to avoid the danger of losing his claim for compensation by the prescription of one year from the date of the accident, under Section 31 of the statute, as amended. His allegations as a whole convey the implication that the employer was refusing to pay the compensation of $20 a week, because he alleged that the defendant was continuing to pay him his regular wages of $55 per week, instead of paying him compensation at the maximum rate of $20 per week, from the date of the accident to the date of the filing of the suit. The plaintiff’s admission in his petition that the defendant treated him fairly in every way up to the time of the filing of his suit does not mean necessarily that he had no fear that the defendant might plead the prescription of one year if the plaintiff failed to file his suit within the year after the happening of the accident. Certainly the plaintiff’s admission that he was treated fairly by the defendant up to the time of the filing of the suit did not forbid his protecting himself against the possibility of being met with the plea of prescription if he should withhold the filing of the suit until the year had elapsed. According to Section 31 of the Statute the running of prescription is not interrupted by the employer’s continuing to pay the employee his wages in full after the accident has happened. On the contrary, the paying of the wages in full by the employer after the accident has happened is virtually a denial that the employee is entitled to compensation for the loss of wage-earning capacity; and the employee’s continuing to receive the wages after the accident has happened might be construed as an admission that he has not suffered any loss of wage-earning capacity. At any rate, Subsection 1(B) of Section 18 of the Employers’ Liability Act does not justify a dismissal of an employee’s suit for compensation merely because of his alleging that the employer has continued to pay his wages in full from the time when the accident happened to the time of the filing of the suit. According to this subsection, what makes a suit for compensation premature is, not the failure of the employee to allege that the employer has not paid him his wages, but the failure of the employee to allege that the employer has not paid him compensation, since the accident happened. And the reason for that is given in Section 31, where it is declared that the payment of compensation — not the payment of wages —prevents the running of prescription. It is conceded in the opinion rendered by the district judge and in the opinion of the court of appeal that their decision in this case is contrary to the decision rendered by this court in the case of Carlino v. United States Fidelity & Guaranty Co., 196 La. 400, 199 So. 228, on rehearing, in 1940. Their Honors and the attorneys for the defendant in this case contend that in our decision in the Carlino case we should have applied Subsection 1(B) of Section 18 of the Employers’ Liability Act, as amended by Act No. 85 of 1926. What we decided in the Carlino case, on rehearing, was that an employee who suffered an injury causing the loss of all or a part of his wage-earning capacity had a right of action to determine and to fix the amount of compensation to which he would be entitled, in order to prevent the loss of his claim for compensation by the prescription of one year under Section 31 of the statute, as amended by Act No. 29 of 1934, notwithstanding the employer continued to pay the injured employee, as a matter of generosity, the same wages which he was earning previous to the accident, and notwithstanding he was able to do only the lighter part of his work, and then only with the aid of sympathetic fellow workmen. It is contended now by the attorneys for the defendant, and was contended by the judges of the two other courts, that we should have considered the payment of zvages after the accident in Carlino’s case as the payment of compensation under the Employers’ Liability Act, and hence that we should have dismissed Carlino’s suit as being premature, on the theory that he was receiving — after the accident — not wages— but compensation — or “the maximum per centum of wages to which [he] petitioner [was] is entitled under the provisions of this act”, — as provided in Subsection 1(B) of Section 18 of the act as amended by act No. 85 of 1926. The reason why we did not refer, in the Carlino case, to Subsection 1(B) of Section 18 of the Employers' Liability Act, as amended by Act No. 85 of 1926 is that we did not consider that subsection applicable to a case where an employer, instead of paying an injured employee compensation after the accident, continues to pay him his wages in full, even though the injured employee has suffered a loss of wage-earning capacity, and is not able to do more than the lighter part of his work. Carlino was employed by the City of Alexandria as a cement worker, in repairing streets, and while so employed he suffered an inguinal hernia. He continued working for about five months, and then submitted to an operation. The city paid him compensation at the rate of 65% of his weekly wages for a period of three months from the time of the operation. He then returned to his work and did the lighter part of it for more than two months, when he suddenly suffered another rupture. As a matter of generosity, and in consideration for Car-lino’s long term of service, the city continued paying him his regular wages after the second rupture. In fact there was an increase of 5‡ an hour in the scale of wages paid generally by the city,- and Car-lino received the benefit of the increase. He was being paid his wages in full at the time when he filed his suit. The date on which he filed the suit was more than a year after the occurrence of the first hernia but was less than a year after the occurrence of the second hernia. The suit was against the insurer of the city, but not against the city. The main defense urged by the insurer in the district court and in the court of appeal, as stated in our opinion in the case, was that the suit was barred by the prescription of one year under Section 31 of the Employers’ Liability Act, as amended by Act No. 29 of 1934. The defendant contended primarily, however, that the plaintiff had not lost any of his wage-earning capacity and hence was not entitled to compensation. The judge of the district court gave judgment for the plaintiff, but the Court of Appeal for the First Circuit reversed the judgment and dismissed the plaintiff’s suit as of nonsuit. See Carlino v. United States Fidelity & Guaranty Co., 196 La. 400, 198 So. 278. The plaintiff brought the case to this court on a writ of review. On the first hearing we affirmed the judgment of the court of appeal on the ground that the plaintiff had not suffered a loss of wage-earning capacity. On rehearing we decided that the plaintiff was entitled to a judgment determining and fixing the rate of compensation to which he was entitled for the loss of his wage-earning capacity as a result of the second hernia which he had suffered. But we stipulated in our decree that the compensation should not be collectible for the period during which the plaintiff had received or would continue to receive his wages from the employer. We held that the plea of prescription was not well founded because the suit was brought within the year after the occurrence of the second hernia; and as to the first hernia the plaintiff had been paid all that was due to him in wages and in compensation, and hence had no just claim for compensation for that injury. Our decision in the Carlino case was supported by the decision which we had rendered in Hulo v. City of New Iberia, 153 La. 284, 95 So. 719, in 1923. We considered it a matter of no importance that Hulo v. City of New Iberia was decided before Subsection 1(B) of Section 18 was added to the Employers’ Liability Act by Act No. 85 of 1926, because that subsection has reference to cases only where the employer pays the compensation due to an injured employee, or to his dependents in the case of a fatal injury. That subsection does not have reference to cases where the employer, instead of paying the compensation due to the injured employee, continues to pay his wages in full, after the accident. We had decided in Daniels v. Shreveport Producing & Refining Corp., 151 La. 800, 92 So. 341, in 1922, that the suit for compensation under the Employers’ Liability Act was not premature where the employer had continued to pay the maximum amount of compensation due to the injured employee but would not admit liability for a definite amount or for a maximum period. To the same effect was the ruling in Ford v. Fortuna Oil Co., 151 La. 489, 91 So. 849, in 1922. The authority of these decisions was not impaired by Act No. 85 of 1926. The defendant relies upon the following cases decided by the Court of Appeal for the First Circuit: Moss v. Levin et al., 10 La.App. 149, 119 So. 558, 120 So. 258, decided in 1929; Reiner v. Maryland Casualty Co., 185 So. 93, decided in 1938; Ulmer v. E. I. Du Pont De Nemours & Co., 190 So. 175, decided in 1939; Carpenter v. E. I. Dupont De Nemours, 194 So. 99, decided in 1940. So far as these decisions by the Court of Appeal for the First Circuit are in conflict with the decision rendered by this court in the case of Car-lino v. United States Fidelity & Guaranty Co. the decisions by the court of appeal are not authority. And some of them are not appropriate. For example, in Moss v. Levin et al. -the employer did not continue paying the injured employee his wages after the accident happened, but paid him only the maximum compensation of $20 per week from the time of the accident to the time when the suit was filed; and it was because of the payment of compensation — not wages- — -that the court held that the suit was premature under the provisions of Subsection 1(B) of Section 18 of the Employers’ Liability Act. Likewise, in Reiner v. Maryland Casualty Company the plaintiff sued for compensation at the rate of $5.26 per week for 400 weeks, for total permanent disability. He had suffered the loss of an eye and consequent impairment of the sight in his other eye. The defendant was paying him compensation at the rate of $5.26 per week, intending to continue the payments for only 100 weeks, for the loss of an eye. The court construed literally Subsection 1(B) of Section 18 of the Employers’ Liability Act, and held that, because of the admission in the plaintiff's petition that he was receiving regularly the weekly compensation that he sued for, his suit was premature. The difference between that case and this case is that in this case the defendant was not paying compensation but was continuing to pay the employee his regular wages at the time when the suit was filed. In the case of Ulmer v. E. I. Du Pont de Nemours & Co., the accident by which the employee was disabled occurred on July 7, 1938, and the employer then put him at light work and continued paying his wages in full until December 28, 1938, on which date the employer terminated the employee’s services and commenced paying him compensation at the maximum rate of $20 per week and was continuing these weekly payments regularly up to the time of the trial of the suit. The only question that the court of appeal was called upon to decide is stated in the court’s opinion thus: “The sole question presented in the case is whether or not the plaintiff is entitled to recover compensation from the date of the injury on July 7th to December 28, 1938, during which time he received his regular wages.” The court of appeal decided of course that Ulmer was not entitled to compensation for the loss of his wage-earning capacity for the weeks for which he was paid his regular wages in full, which amounted to more than the maximum compensation to which otherwise Ulmer would have been entitled. The court of appeal expressed its decision completely in the following paragraph, quoted from 190 So. at page 176, thus: “It is obvious that plaintiff did not suffer any loss or diminution in his earning capacity from July 7th to December 28, 1938, as he received full wages for that period. During that period he drew more than the maximum amount of compensation that he would have drawn had he been put on compensation. He suffered no disability during that period as his earnings were not curtailed or affected in any way.” In the Carlino case, on rehearing, 196 La. at page 415, 199 So. at page 232, we referred to the decision in the Ulmer case with approval, so far as it maintained that the injured employee could not collect compensation for the loss of his wage-earning capacity for the weeks for which he was paid his wages in full, because, for those weeks, there was no right of action for compensation. So far as the court of appeal, in the Ulmer case, held that the suit for compensation subsequent to December 28, 1938, was premature, the case is distinguished from the present case by the fact that in the Ulmer case the employee was receiving —not his wages — but the maximum compensation that was due him at the time when he filed his suit; whereas in the present case the plaintiff was receiving, not compensation, but his wages in full, at the time when the suit was filed and for six days thereafter. In the case of Carpenter v. E. I. Du Pont de Nemours & Co. the court decided nothing more than that the action was not barred by the prescription of one year under Section 31 of the Employers’ Liability Act as amended by Act No. 29 of 1934. The employer had continued paying the injured employee his wages in full for doing lighter work than that which he was doing -before the accident happened; and this arrangement continued for a period exceeding a year before the injured employee filed his suit for compensation. The only question was whether the circumstances under which the plaintiff was paid his wages in full, for doing lighter work after the accident happened, warranted the conclusion that the payments of the wages should have the same effect of suspending the period of prescription as if the payments were for compensation. The court found as a matter of fact that the employer’s continuing to pay the employee his wages, for doing lighter work after the accident had happened, should he treated as the payment of compensation; but at the same time the court declared that an employer should not be allowed to defeat a just claim for compensation by simply keeping the injured employee on the pay roll for more than a year after the accident has happened, at wages equivalent to or exceeding the amount of compensation to which the injured employee is entitled. The court did not refer to — and had no occasion to refer to — Subsection 1(B) of Section 18 of the statute as amended by Act No. 85 of 1926. In fact the only section of the act that was referred to is Section 31. With reference to that section the court expressed its opinion thus [194 So. 101]: “But the statute itself, as is well known, calls for a liberal interpretation of its provisions in favor of the injured employee, and it is our confirmed opinion that when, with knowledge of the employee’s disabling injury, the employer continues to pay him his usual wages, which is 35% more than the amount of compensation he would have to pay, for performing lighter services than he was doing before, there results a situation in which the provisions of the statute regarding the bar of peremption have been fully satisfied and as long as those payments continue prescription does not run. Other-wiseit is obvious that the employer could defeat every just claim for compensation for a period of more than fifty-two weeks by simply keeping the injured employee on the pay roll at a wage which is the equivalent of the amount of compensation he would be entitled to, or more, for a year and a day" [The italics are ours.] An employer could not defeat a just claim of an injured employee for workmen’s compensation by keeping his name on the pay roll at regular wages for a period exceeding a year, because the employee could interrupt the running of prescription by bringing suit on his claim for workmen’s compensation at any time. The theory of the opinion rendered by the court of appeal in the Carpenter case, as we understand, is that the paying of the unearned wages, in the circumstances of that case, was regarded as the payment of compensation in a disguised form. That must be so because, according to Section 31 of the statute, it is the payment of compensation — not the payment of wages — that prevents the running of prescription against a claim for workmen’s compensation. There is no reason why the payment of wages should prevent the running of prescription against a claim for workmen’s compensation, because, according to the wording of Subsection 1(B) of Section 18 of the statute, the payment of wages after the accident has happened does not prevent the injured employee from bringing his suit to have the court fix the amount of the compensation that is due him, and to put a maximum limit upon the number of weeks during which it shall be paid. In the words of that subsection it is only the payment of workmen’s compensation that suspends the right of an injured employee to bring suit to fix the amount of compensation to which he is entitled, and to limit the number of weeks in which it is to be paid. Of course if it is shown in any case that the payment of wages to the injured employee after the accident happened was a mere subterfuge or pretense on the part of the employer, intending thereby to lull the injured employee into a sense’ of security until the expiration of the year has elapsed, so that the employer might then plead prescription in bar of a suit for compensation, the payments made after the injury might well have the effect of preventing the running of prescription; otherwise an injustice would be sanctioned, — as explained by the court of appeal in the Carpenter case. It will not do to assume that no employer in such a case would ever take advantage of his right to plead prescription against a just claim for compensation after the year has expired. It is sufficient to say that the injured employee in such a case is not obliged to give the employer the advantage of having the right to plead prescription in bar of a just claim for compensation. In this case, for example, if the injured employee had not brought his suit within the year after the accident happened, he would have received in unearned wages for 52 weeks the total sum of $2,-860, but he would have risked the loss of the remaining part of $8,000 of compensation by a plea of prescription against a suit for compensation brought after the expiration of the 52 weeks from the date of the accident. Adverting now to the Carlino case, there should be no doubt that the reason why we •did not refer to Subsection 1(B) of Section 18 of the Employers’ Liability Act, as amended by Act No. 85 of 1926, was that that subsection was not deemed applicable to a case where the employer continued paying the injured employee his regular wages, instead of paying him workmen’s compensation, after the accident. The omission to cite that subsection was not due to an oversight. The subsection was not referred to in the opinion rendered by the court of appeal, nor was it referred to in the opinion rendered by this court on the original hearing; nor was it referred to in our opinion rendered on rehearing, when we reversed the judgment of the court of appeal. That subsection was not referred to in any of the briefs filed in the case, except in the brief filed by the defendant in support cf its application for a second rehearing. If we had overlooked the subsection in our original opinion, and in the opinion rendered on rehearing, and if we had deemed it applicable in our consideration of the petition for a second rehearing, we would have given an explanation in a per curiam opinion in refusing the second rehearing,- — or we would have granted the second rehearing. If we had erred in that respect it is likely that Subsection 1(B) of Section 18 of the statute would have been amended in one of the several sessions of the Legislature held after we decided the Carlino case. It is not likely that our decision in the Carlino case was not observed closely by those members of the legal profession who are interested particularly in the law on the subject of workmen’s compensation. The decision was referred to in a comment by a member of the student board of editors of the Louisiana Law Review in Volume III, No. 4, p. 837, in May 1941. The author of the comment expressed the opinion that our decision in the Carlino case should have been governed by the decision rendered by the Court of Appeal for the First Circuit in Moss v. Levin, 10 La.App. 149, 119 So. 558, 120 So. 258, and hence that, following the liberal interpretation placed by the court of appeal upon Section 31 of the statute, we should have applied Subsection 1(B) of Section 18 to the Carlino case, and should have dismissed the suit as being premature. There is no reason to d'oubt that that comment was read generally by that large proportion of the members of the profession of law -who are particularly concerned in having us interpret correctly the Workmen’s Compensation Law. It is quite likely therefore that if our omission to apply Subsection 1(B) of Section 18 of the statute to the Carlino case had been regarded generally as an error the Legislature would have been asked to amend this subsection so as to make it applicable to a case like Carlino’s case — or Thornton’s case. In the original petition in this case the plaintiff claimed compensation from “about February 10, 1943.” In a supplemental petition, filed several days after the defendant filed its plea of prematurity and exception of no cause or right of action, the plaintiff amended his petition by substituting for the year 1943 the year 1942. No explanation or reason is given in the supplemental petition for changing the year. If the court allows the plaintiff compensation during the period of his disability, not to exceed 400 weeks, or 300 w^eks, commencing on February 10, 1942, the number of weeks for which the wages were paid after the accident happened will have to be deducted from the maximum number of weeks. Our conclusion is that this suit should not have been dismissed on the face of the pleadings. In. fact the admissions made in the defendant’s pleas of prematurity and of no cause or right of action mVht be deemed sufficient to justify overruling the pleas without hearing evidence on the subject. But, if the defendant can, without its being inconsistent with the admissions made in the pleadings which it has filed and in the letter which forms a part thereof, make such allegations of fact as will put at issue the question of prematurity, the judge of the district court may hear evidence on the question, and dispose of it before proceeding with a hearing of the case on its merits. That method of procedure is prescribed in Subsection 1(B) of Section 18 of the Employers’ Liability Act. The judgment of the district court and the judgment of the court of appeal are annulled and the case is ordered remanded to the district court for further proceedings consistent with the opinion which we are rendering in this case. The defend ant is to pay the costs of the appeal and of the proceedings in this court; all other costs are to abide the final disposition of the case. ROGERS and ODOM, JJ., dissent. FOURNET and HAMITER, JJ., concur.

WESTERFIELD, Judge. Mrs. John G. Schloegel purchased a secondhand washing machine from Mrs. J. B. Yesso for $100. The ceiling price of the washing machine as established by the Maximum Price Regulation No. 372 (8th Fed.Reg. page 5533) was $27.50. Mr. Schloegel brought this suit against Mr. and Mrs. Yesso for $217.50 representing treble damages as allowed by Section 205(e) of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 925(e), plus $75 attorney’s fees. The defendants filed exceptions of mis-joinder of parties and of no cause or right of action, and they asked that the sale be rescinded upon the return of the $100 and the washing machine be restored to them. Other defenses were offered such as the averment that the transaction was the result of a plot to entrap the defendants, but in this court the only defense insisted upon is one of law to the effect that the Maximum Price Regulation No. 372 is void because there is no such grant of authority to the price administrator in the Emergency Price Control Act of 1942 and, in the alternative, and in the event that such authority is held to be conferred upon the Administrator, the regulation and the Emergency Price Control Act are denounced as unconstitutional because constituting “a delegation of legislative authority to the said price administrator not permitted by the Constitution of the United States of America and depriving defendants of their constitutional rights guaranteed defendant by the said constitution.” The argument on the first point to the effect that the regulations adopted by the Price Administrator exceeds the authority conferred upon him by the Emergency Price Control Act is to the effect that the Act of Congress properly construed does not apply to individuals not engaged ir. trade or business. The language of the. Act of Congress is as follows: “It shall be unlawful * * * for any person to sell or deliver any commodity, or in the course of trade or business to buy or receive any commodity * * * (in violation of any regulation, order, or price schedule).” Learned and industrious counsel for defendant contends that under this statute there is no authority to bring within the scope of the price control legislation transactions not in the course of trade or business. An elaborate argument is made to the effect that the omission of the phrase “in the course of trade or business” in reference to a seller is due “to what is known in syntax as an ‘ellipsis’ ”; and that a proper reading of the text considering the elliptical form of the statute would be “it shall be unlawful in the course of trade or business, for any person to sell or deliver any commodity, or in the course of trade or business to buy or receive any commodity”. The argument is ingenious, but we are not privileged to consider the validity of the regulation or the constitutionality of the Act of Congress, for it is expressly provided in Section 204(d) of the Emergency Price Control Act, SO U.S.C.A.Appendix, § 924(d) (now known as the Stabilization Act) that the Emergency Court of Appeals has exclusive jurisdiction to determine these questions. That Section reads as follows: “The Emergency Court of Appeals, and the Supreme Court upon review of judgments and orders of the Emergency Court of Appeals, shall have exclusive jurisdiction to determine the validity of any regulation or order issued under section 2, of any price schedule effective in accordance with the provisions of section 206, and of any provision of any such regulation, order, or price schedule. Except as provided in this section, no court, Federal,- State, or Territorial, shall have jurisdiction or power to consider the validity of any such regulation, order, or price schedule, or to stay, restrain, enjoin, or set aside, in whole or in part, any provision of this Act authorizing the issuance of such regulations or orders, or making effective any such price schedule, or any provision of any such regulation, order, or price schedule, or to restrain or enjoin the enforcement of any such provision”. See Whatley v. Love, La.App., 13 So.2d 719. Incidently the act has been held constitutional by the United States Supreme Court in Yakus v. United States, 320 U.S. 730, 64 S.Ct. 190, 88 L.Ed. 653. We conclude that the plaintiff is entitled to recover. The Stabilization Extension Act of 1944 (United States Code Congressional Service, Volume 5, page 625, 50 U.S.C.A. Appendix, § 925(e) amended the Emergency Price Control Act, so as to change the provision which required the courts to give the complaining purchaser three times the amount of the overcharge plus attorney’s fees and costs. The pertinent part of the amendment reads as follows: “In such action, the seller shall be liable for reasonable attorney’s fees and costs as determined by the court, plus whichever of the following sums is the greater: (1) Such amount not more than three times the amount of the overcharge, or the overcharges, upon which the action is based as the court in its discretion may determine, or (2) an amount not less than $25 nor more than $50, as the court in its discretion may determine: Provided, however, That such amount shall be the amount of the overcharge or overcharges or $25, whichever is greater, if the defendant proves that the violation of the regulation, order, or price schedule in question was neither wilfull nor the result of failure to take practicable precautions against the occurrence of the violation.” The amendment is made “applicable with respect to proceedings pending on the date of enactment of this Act * * * and with respect to proceedings instituted thereafter.” The argument is made that the present suit is now pending in this court and that, since the good faith of the vendors is not questioned, the defendants should be entitled to the benefit of this amendment. The plaintiff, in answer to this proposition, calls our attention to the fact that the amendment was adopted practically one month after the judgment of the lower court was signed, and that, therefore, the case is no longer pending, citing Code of Practice Article 548 and Castelluccio v. Cloverland Dairy Products Company, 165 La. 606, 115 So. 796, 798. Article 548 reads as follows: “A judgment, when once rendered, becomes the property of him in whose favor it has been given; and the judge cannot alter the same, except in the mode provided by law.” The Castelluccio case is in line with the article of the Code of Practice, holding that a judgment of the trial court is a final judgment subject only to reversal on appeal. We read the following from that case: “It must be coñsidered that there are final judgments of inferior courts, as well as final judgments of appellate courts. ‘Definitive or final judgments are such as decide all the points in controversy between the parties.’ C.P. art. 539. “The judgment rendered in the lower court in favor of Salvador Castelluccio was a definitive or final judgment, not in the sense, it is true, that it was indefeasible as against the right of appeal, but it was such a judgment as could have been executed if a devolutive appeal only had been taken. It was such a judgment as could not be set aside by even a suspen-sive appeal, the only effect of which, in the present case, was to stay execution of the judgment. C.P. arts. 575 and 578.” Whatever was decided in the Castelluc-cio case, in our opinion the present appeal pending in this court was a “proceeding (s) pending on the date of the enactment of this act”. In Mackenzie v. A. Engelhard & Sons Company, 266 U.S. 131, 45 S.Ct. 68, 69, 69 L.Ed. 205, 36 A.L.R. 416, the United States Supreme Court, through Mr. Justice Holmes, said: “An appeal is a proceeding in the original cause and the suit is pending until the appeal is disposed of.” In Gulf Refining Company of Louisiana et al. v. United States, 269 U.S. 125, 46 S.Ct. 52, 54, 70 L.Ed. 195, a case which originated in Louisiana, we read: “An appeal is not a new suit in the appellate court, but a continuation of the suit in the court below, or, as this court has recently said, ‘a proceeding in the original cause, and the suit is pending until the appeal is disposed of.’ Mackenzie v. [A] Engelhard Company, 266 U.S. 131, 142, 143, 45 S.Ct. 68, 69 L.Ed. 205, 36 A.L.R. 416. If is but a step toward the final adjudication of the original cause, which the law allows quite as much as it allows a defense in the first instance. We are of opinion that within the principle of the Louisiana rule the defendants continued in possession in moral good faith until the final adjudication upon appeal.” We conclude, therefore, that when the amendment of the Stabilization Act was adopted on June 30th, 1944, that this case was a proceeding pending in this court and, consequently, the provisions of the amendment are applicable. It results that we have discretionary authority in regard to the damages to be allowed within the limits of the statute. We conclude, therefore, in view of the good faith of the vendors that the judgment for the overcharge and not treble damages would be proper. For the reasons assigned the judgment appealed from is amended by reducing the amount awarded plaintiff to $72.50, plus $25 attorney’s fees and costs. Amended and affirmed.

DREW, Judge. In 1931 Lorenza Messina purchased 16 acres of land in Ward 5 of Ouachita Parish, Louisiana, and one of his sons moved on the property and remained there for a couple of years, after which time it was leased for a money rental to some third person. This property is located on Mail Route No. 1 out of West Monroe, Louisiana. Messina also has owned for the past twenty-two years property located at the corner of Tenth and Pine Streets in Monroe, Louisiana, and he has constantly made this property his home and operates a small store located thereon. Messina paid taxes on the 16 acres of land for the years 1931, 1932, 1933 and claimed a homestead on the property for the years 1934, 1935 and 1936, thereby securing its exemption from taxes. In 1937 Messina failed to claim the homestead exemption and the property bore for that year its proper taxes for the State and Parish. The taxes were not paid when due and a registered notice of delinquency was mailed to Lorenza Messina by the Sheriff to the address shown on the Tax Rolls, to-wit, “Route 1, West Monroe, La.”, which notice was returned to the Sheriff with a notation made thereon — “Delivery Attempted”. The 16 acres of land were thereafter advertised for sale to pay the taxes due for the year 1937 and at said sale, on July 2, 1938, the property was purchased by G. H. Owens, a deed reciting that he was the highest bidder for the least amount of land offered. The Sheriff executed a deed to Owens dated July 5, 1938, which was recorded July 22, 1940 in the Conveyance Records of Ouachita Parish, Louisiana. For the year 1938, Messina again filed application for a homestead exemption on said property, which was granted. The first knowledge Messina had that his property had been sold for taxes was on or about January 1, 1943, when his tenant ceased paying rent to him and began paying it to Owens. This suit was filed on March 22, 1943 by Messina attacking the tax sale and praying that it be declared null and void for the following alleged reasons: I. That he was not notified according to law of delinquency in the payment of his. taxes on this property; II. That notice if any was sent to West Monroe, Louisiana, Route 1; III. That he did not receive said notice sent to West Monroe, Louisiana, Route 1; IV. That he did not receive a notice of any kind; and V. That no proper advertisement was made, according to law, of the delinquency of the payment of his taxes. The lower Court awarded plaintiff judgment annulling and setting aside the tax sale, and defendant has perfected an appeal to this Court. The sheriff of Ouachita Parish sent a notice of delinquency to Messina by registered mail to the address designated by Messina as his home when he applied for a homestead exemption on the property for the years 1934, 1935, 1936 and 1938, and this address was shown on the Tax Rolls as made up by the Assessor. While it is true Messina has never lived on the sixteen acres and it was not in fact his home, it was so designated by him when he applied for a homestead exemption from taxes several years preceding the year the property was sold for taxes and the year following. The Assessor was fully justified in placing this address on the Tax Rolls as Messina’s home address. If any address other than this one had been designated by Messina, he could not have secured the tax exemption provided for homesteads. If in order to defraud the State of the taxes due on this 16 acres of land he falsely declared he was residing thereon, he cannot now complain that notice of delinquency was mailed to that address. If this were not true, any taxpayer could defraud the State by giving an incorrect address to the Assessor. After doing so he could go his way feeling sure that his property could never be legally sold for taxes whether he •paid them or not, therefore, insofar as notice is concerned, the Sheriff fully complied with the requirements of the law when he mailed the notice of delinquency to the address which had been designated by the tax debtor as his home. When the notice was returned showing “Delivery Attempted”, the Sheriff proceeded to advertise the property for sale as required by law, and adjudicated same to Mr. Owens. Messina contends that after the notice was returned, the Sheriff should have treated him as one whose address is unknown and proceeded accordingly. There is no merit in this contention for Messina’s address was known as it was given to the Assessor by him. He also complains that the Sheriff failed to make out, sign and file with the Clerk of Court the proces verbal required by Section 51 of Act 170 of 1898, as amended. This question was disposed of in the case of Reed v. Stinson, 188 So. 509, 511, by this Court in the following language: “The lawmaker evidently had in mind the desirability of safely preserving for future purposes and reference official evidence of the giving of notice to all delinquent tax debtors whose property was thereafter sold for taxes. Those who purchase property sold for taxes, after the legal requirements as to giving of notice, advertisement, etc., are not unfavorably affected because the tax ■collector has failed in his duty in the respect mentioned.” Our courts have correctly held that -where the proces verbal has not been filed by the Sheriff and there is no legal proof that the tax notice was given, this presumption of the validity of the tax sale no longer exists. Pill v. Morgan, 186 La. 329, 172 So. 409; Hargrove v. Davis, La.App., 178 So. 198. In the case at bar there is no dispute over the fact that the notice was sent by registered mail by the Sheriff to the address furnished the Assessor by Messina, therefore, the failure of the Sheriff to file the proces verbal as required by law cannot be of any comfort to Messina or in any way affect the legality of the tax sale. We are of the opinion the tax sale was regular and legal and it therefore follows that the judgment of the lower Court is erroneous and is now reversed and the demands of plaintiff are rejected, at his costs.

LE BLANC, Judge. These two suits, which were consolidated for argument and submission, involve claims for compensation arising out of the death of Willie F. Smith, Jr., husband of the plaintiff in one suit and the father of a minor, plaintiff in the other suit. Mrs. Smith, plaintiff in the first suit, asks for compensation at the rate of $20 per week for a period not to exceed 300 weeks, plus the sum of $150 for funeral expenses. She is the mother and natural tutrix of her two children Stewart Arnett Smith and Argrea Ann Smith, issue of her marriage with her deceased husband and her demand includes whatever compensation would accrue to thgm. The plaintiff in the second suit is Mantie Day, the maternal grandfather of Essie Pearl Smith, minor, issue of the first marriage of the decedent, Willie Francis Smith, Jr., with Essie Pearl Day, also deceased. Mantie Day is the duly qualified dative tutor of the minor Essie Pearl Smith for whom he asks compensation, separately and independently of the claim made by the widow in the other suit, at the rate of $11.36 per week, for a period of 300 weeks. Willie F. Smith, Jr., was formerly employed by the defendant Tangipahoa Parish School Board as one of its school-bus drivers and was killed in an accident while acting in the course and scope of his employment on March 24, 1944. There is no dispute on this point and the defense, as appears from the answer, consists of a plea that the decedent was an independent contractor. In the alternative it is pleaded that the amount of compensation that is demanded is far beyond what is justly due as, it is claimed, that from the salary the deceased was paid, $139.80 monthly, there must be deducted a rental hire of the equipment which was furnished by him consisting of his school-bus and including the expenses necessary in operating it, which would leave him a net average weekly wage of $10.95. In the widow’s suit it is contended that she is therefore entitled, under the law, to 32%% of that amount for a period of 300 weeks and that her two minor children, together, are entitled to % of the remaining 32%%. In the Mantie Day suit it is contended that the tutor is only entitled to recover for the benefit of the minor he represents, at the rate of % of 32% of the average weekly wage of $10.-95 for a period of 300 weeks. In other words, after having arrived at the average weekly net earnings of the decedent, the defendant’s contention is that it only owes 65% of the amount to be divided between the widow who is entitled to 32%% and all three minor children who together are entitled to the remaining 32%% or % of that amount each. After hearing in the court below the district judge fixed the rate of compensation at $18.50 weekly, of which amount he awarded the widow one-half and the other half he divided as follows: Two-thirds to Mrs. Willie F. Smith, Jr., as tutrix of her two minor children and one-third to Man-tie Day, tutor of the minor Essie Pearl Smith. He also awarded the widow the sum of $1^0 for funeral expenses. The defendant appealed and both plaintiffs have answered praying for an increase in the rate of compensation to the amount originally demanded by each and also for an increase in the award for funeral expenses. The case is very similar in some respects to that of Ridgdell v. Tangipahoa Parish School Board, La.App., 17 So.2d 55, in which the same defense of independent contractor was presented. It was there rejected and does not seem to be seriously urged in this suit. For the same reason that it was rejected in that case we hold that it cannot be sustained here. The issue with regard to the distribution of compensation was not presented in the Ridgdell case as the situation there was not the same as it is here. It is raised in this case because there is a child of a former marriage, the one represented by her grandfather, with whom she lives, plaintiff in the second suit that was filed. We find no merit in the contention raised under that issue that this child has a separate and independent cause of action for compensation as the law is clearly to the effect that the maximum amount that can be awarded as compensation is 65% of the weekly average earnings of the deceased employee. The widow is undoubtedly entitled to receive 32%%. Par. 1, subsec. 2 (E) of Se'c. 8 of Act 242 of 1928. If there is a widow and two or more children, the total amount of 65% must be paid. Par. 3 of the same subsection of the Act. Whilst in subsection (G) of this same section it is provided that the compensation-payable in case of a surviving widow and children shall be paid entirely to the widow for the common benefit of herself and her children, the law has nevertheless been construed to mean that if there are other children of the deceased employee by a pre-deceased wife or by a di vorced wife, shown to have been dependent, they can recover their proportionate share of the amount payable for the benefit of all the children (in this case, 32y2%), through a duly qualified legal representative. See Pointe Coupee Electric Membership Corporation et als. v. Pettey et als., La.App., 6 So.2d 764; Britt v. Nashville Bridge Co. et al., La.App., 171 So. 493; Selser v. Bragmans Bluff Lumber Co., La. App., 146 So. 690. With these two issues disposed of we are left now to determine the amount of the average net weekly earnings of the decedent on which compensation is to be based. In the Ridgdell case there was no evidence showing what the monthly expenses were for operating the school-bus except the amount of gasoline purchased by the driver. Like in this case he used the bus for other purposes besides transporting school children and the only basis on which this expense could be arrived at was to pro-rate the amount of gasoline consumed. In this case however, the defendant produced several school-bus drivers as witnesses in an effort to show what is the average amount of all monthly expenses incurred in operating a bus and from this to try to reach an average on which proper deductions could be made. The trial judge, in fixing the average monthly expenses at $25 stated that these included “the cost of gasoline, oil and incidental expenses and repairs used in and to the school-bus in making the route per month.” As it is shown that the decedent’s school route covered 40 miles per day and he ran it 20 days per month, he therefore drove approximately 800 miles per month in transporting the children. His expenses as fixed by. the judgment of the. district court averaged a bit more than three cents a mile which obviously is not correct as it is a matter of general knowledge that it costs more than that to operate even a light automobile. In reading the testimony of the bus-drivers who were witnesses for the defendant, we detect an effort on their part to magnify their expenses with the view no doubt of showing how little of their salary is left net to them each month. In fact, we learn from the record that there has been formed an association among them for the purpose of trying to get better pay. Their testimony naturally has the effect of materially reducing the net amount plaintiff’s deceased husband would have received as some of them estimated their costs of operation anywhere from 12 to 15 cents per mile. Plaintiff and her witnesses, on the other hand, tried to minimize the expenses as much as they could, the effect of which of course would be a greater increase in the rate of compensation. We have carefully gone over all their estimates of different expenses including gasoline, oil, maintenance, tire replacements and depreciation and find on averaging them all, an operating cost of a little over four cents per mile which, in our opinion, is again too small. For lack of any more definite proof on the items of expenses just mentioned we have concluded that the better and safer method of fixing the costs of operation is on a mileage basis. On this point too, unfortunately, the record is far from satisfying as we find the two extremes, one of three cents per mile as arrived at in the judgment of the district court and the other of fifteen cents as testified to by one of the witnesses. Between these two however there are two other estimates, one of four and the other of twelve cents per mile. Taking all these estimates into consideration we strike an average of approximately eight cents per mile which we are convinced comes nearer to being correct than any other, and we have decided to use that figure in computing the deceased employee’s monthly expenses. Based on a run of 800 miles per month, at eight cents per mile, the decedent’s monthly expenses therefore amounted to $64.00. This sum deducted from his monthly pay of $139.80, left him a net of $75.80 which divided by four made his average weekly earnings $18.95. The total amount of compensation due therefore is 65% of that amount, or $12.31 per week for a period of 300 weeks. Of this amount one half and two thirds of the other half is payable to the widow for the common benefit of herself and her two minor children and the remaining one sixth is payable to Mantie Day, tutor of the minor Essie Pearl Smith. The demand of the plaintiff Mrs. Willie F. Smith, Jr., in answer to the appeal for an increase in the allowance for funeral expenses, cannot be considered as the total demand would then be far in excess of the one prayed for in her petition. For the reasons stated herein it is ordered that the consolidated judgment here in rendered and appealed from in both cases be and the same is hereby amended by reducing the amount awarded as compensation from the sum of Eighteen and 50/100 Dollars weekly to the sum of Twelve and 31/100 Dollars weekly, of which amount, five-sixths, or $10.25, shall be payable to Mrs. Willie F. Smith, Jr., plaintiff in one suit, for the common benefit of herself and her minor children, Stewart Arnett Smith and Argrea Ann Smith, and the remaining one-sixth, or $2.06, shall be payable to Mantie Day, tutor of the minor, Essie Pearl Smith, plaintiff in the other suit, for the benefit of said minor. In all other respects the said judgment is affirmed.

DORE, Judge. In this suit plaintiff seeks compensation against his employer, the Canulette Shipbuilding Company, and its insurance carrier, the Maryland Casualty Company, at the rate of $20 per week for a period of 400 weeks, alleging that while in the course and scope of his employment as a carpenter by defendant company, on April 26, 1943, at about 10 :00 A. M., he strained himself while lifting a heavy timber, and as a result sustained a left inguinal hernia which totally disabled or incapacitated him from doing work of any reasonable character. By supplemental petition, after defendants had filed their answer, plaintiff alleged that the accident had occurred on April 20, 1943, instead of April 26, 1943. The District Court, after hearing the case, came to the conclusion that plaintiff had failed to prov¡e tihalt his condition was caused by an accident, as alleged, and con-v sequently rendered judgment in favor of the defendants. Plaintiff has appealed. It appears that plaintiff was examined for employment with Higgins Industries, Inc., on October 13, 1942, at which time there was no evidence of a hernia. He then worked for Higgins, Inc., for a period of some two or three months, after which the whole crew was laid off on account of lack of work. In the latter part of January, 1943, he was employed, without physical examination, by the defendant employer. A review of the evidence in this case shows, as pointed out by the trial judge in his written reasons for judgment, that the plaintiff’s testimony with reference to the accident alleged is largely discredited by the other evidence in the case. The date and time of the accident as testified to by the plaintiff, and as supported by the witnesses Duncan and Stewart, is at 10:00 o’clock A. M., on April 20th, but the time cards, executed by the plaintiff himself, show that on April 20th he worked for his full 8 hours. Notwithstanding that fact, he testifies that after the accident, which happened at 10 o’clock, he merely stayed on the job without doing much of anything until 12:00 o’clock, when he left for his home and hitchhiked there, and that upon arriving at home he discovered that he had a lump on his .left side as big as an egg; that he stayed home for the rest of that day and for two days thereafter; and that he then returned to his work and stayed on the job until April 25th, being paid on April 26th, on a Sunday, and thereafter secured his release on May 3rd. The time cards, however, show that he worked, as aforesaid, on the day of the alleged accident his full eight hours, Tuesday, April 20, iy2 hours on the next day, Wednesday, 8 full hours on the next day, Thursday, was away on Friday, and 8 full hours on Saturday following. It is also shown by the time cards and by the employee’s record of earnings that he worked 8 full hours on April 29th, and 8 full hours on April 30th, 1943. On May 3, 1943, plaintiff sought and obtained his release from defendant’s employment. From the evidence, we gather that when plaintiff sought and obtained his release on May 3, 1943, from defendant employer, it was not because he had met with an accident resulting in a hernia but it was because he was seeking new employment with increase in wages. He made his application for work with Todd-Johnson Dry Docks, Inc., some nine days thereafter, or May 12, 1-943. He was then referred to Dr. Romano for a physical examination. Dr. Romano found that plaintiff had a left inguinal hernia. Plaintiff was so informed and was refused employment. On that day, he visited the plant of defendant company and informed an officer of defendant company and his former foreman of his hernia, contending that he had received it while in the course and scope of his former employment. This appears to be the first notice that defendant company had of any alleged accident or injury to the plaintiff. There seems to be no question that the plaintiff has been suffering with a left inguinal hernia at least since May 12, 1943, some 12 days after his last day of employment and 9 days after his release therefrom, and the only serious question is whether or not he has proved that this hernia resulted from an accident in the course and scope of his employment by defendant. As stated before, the only testimony with reference to an accident is his own, plus the testimony of witnesses Duncan and Stewart, fellow employees who were working with him and who both testified that on or about April 20th, some time in the morning, plaintiff complained of having strained himself and having hurt his left side; but as pointed out hereinabove, the plaintiff’s testimony is largely discredited by his record of employment. Plaintiff’s testimony is further discredited in that he received the full wages as shown by his record of employment. He testified that although he had received the full wages as called for by the time record, someone must have punched the time clock for him without his permission, and that the check for $18.71 received by him on May 3, 1943, for the wages earned on April 29 and 30, as shown by the time record, were not for wages but money retained by defendant company for the purpose of buying bonds. In this, he is contradicted by the time record, the testimony of the bookkeeper, and the voucher or check issued therefor and cashed by him. Moreover, plaintiff is flatly contradicted by Willie Davis, who testified that he was working with plaintiff and with Messrs. Duncan and Stewart during the whole month of April, 1943, and that if plaintiff had sustained an accident, it would not have escaped his notice. Furthermore, Edgar J. Pechón, witness for defendant, testified that his job was that of Leaderman and that his duties consisted of going around the various employees to see that they were performing their work properly, and that Duracher was one of the men under him, and that Duracher had never reported any accident to him, although the employees were fully aware of the fact that accidents were supposed to be reported to him and that there were signs placed in various parts of the plant where they could be easily seen advising employees to report such accidents. Elbert R. Weaver, the defendant’s foreman, testified that he never had any knowledge of any accident sustained by plaintiff until some time in May, when Dur-acher came to the plant to report that he had sustained a hernia. The plaintiff strenuously argues that the time cards of plaintiff and his work record should not have been admitted for the reason that they are self-serving declarations and are from the books of defendant company. The plaintiff loses sight of the fact that this is a compensation case wherein the rules of evidence are relaxed and the further fact that these time cards or records are made by the employees themselves. If the time cards are self-serving declarations, they are in favor of the employees, plaintiff included, and not on behalf of the employer. It is by these time cards executed by the employees that the employees are paid their wages. It appears from the evidence that unless we want to believe the plaintiff and Duncan and Stewart, and disbelieve the other witnesses, the time cards made by plaintiff himself and the work records, we must reach the conclusion that the plaintiff has failed to establish the alleged accident to a legal certainty, and we must therefore affirm the judgment below. The district judge, who heard the case and who saw the witnesses on the witness stand, failed tó believe plaintiff and his two witnesses, apparently because of the inconsistency in plaintiff’s testimony and his record of employment, but also to some extent at least because of their demeanor on the witness stand. We feel that his conclusion, due to the great advantage he has on us in judging this testimony, should not be disturbed. Furthermore, it seems proper to make the observation that this is not a case, as contended by plaintiff, where an employee sustained an accident without knowing the resultant injury, for his own testimony is that he immediately after the alleged accident had the symptoms of a hernia injury, and upon returning to his home discovered a bulge in his left side as big as an egg and yet did not at that time, on April 20th, report to his employer, in fact not until after his examination for employment by Todd-Johnson on May 12th. Like the trial judge, we cannot believe that testimony, and as aforesaid do not feel that the finding of fact of the able trial court should be disturbed. Judgment affirmed.

LINDSAY, Judge. The defendant, Michael J. Mims, was charged with one count of distribution of marijuana, and one count of possession of marijuana with intent to distribute, violations of LSA-R.S. 40:966. The defendant was tried before a jury and was found guilty as charged on both counts. The trial court sentenced the defendant to the maximum sentence under each count, ten years at hard labor and a fine of $15,000.00, and ordered that the sentences be served consecutively. On each count, the defendant was also ordered to serve an additional prison term of one year at hard labor in default of payment of the fine. The defendant originally appealed his convictions and sentences, urging numerous assignments of error, including objections to the exclusion of black prospective jurors by the state through the use of peremptory challenges. We remanded the case to the trial court for a hearing on this issue in accordance with Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1987). State v. Mims, 505 So.2d 747 (La.App. 2d Cir. 1987). A hearing was held in the trial court, following which the court ruled that the jury had been properly empaneled and therefore, the defendant’s motion for mistrial was denied. Following that hearing, the defendant again appealed his convictions and sentences, reurging his original assignments of error and additionally objecting to the results of the Batson hearing. For the following reasons, we affirm the defendant’s convictions, and affirm the trial court ruling regarding the Batson hearing, but we vacate the sentences and remand to the trial court for resentencing. FACTS On November 23, 1984, Glen Jackson called Deputy Keith Watkins of the Jackson Parish Sheriff’s Department and told him that he could obtain marijuana from the defendant, Michael Mims. Deputy Watkins and another deputy, Steve Wyatt, went to Jackson’s residence, picked him up, and returned to the sheriff’s office. At the Sheriff’s office, a $20.00 bill was obtained from Jackson. This bill was marked by Deputy Watkins with a special ink, visible only under a black light. Watkins marked the bill with his initials, K.W. The bill was returned to Jackson. At approximately 8 to 9 p.m., Wyatt, Watkins and Jackson got into Watkins’ private vehicle and drove to East Hodge, Louisiana, where Mims operated a small store located in a metal building. Mims lived in a mobile home beside the store. The trio parked the vehicle out of sight of the store. Deputy Watkins positioned himself in front of the store and Deputy Wyatt went to the rear, in order to observe activities inside the store. Jackson entered the store. The deputies could see the defendant inside the store, behind the counter, and saw the defendant reach behind the counter and hand a package to Jackson. Jackson exited the store and the trio returned to their vehicle. Jackson was searched and his marked, $20.00 bill, previously on his person, was gone, but Jackson was in possession of a small paper bag containing three smaller plastic bags. These bags contained a vegetable substance later determined to be marijuana. Jackson informed the two deputies that the defendant said he had more marijuana in a safe place in his mobile home. The deputies prepared a search warrant for the defendant’s store and for the mobile home. The warrant was signed by a district court judge, and in the early morning hours of November 24, 1984, Watkins and Wyatt, along with three other deputies and the local police chief, Fred Ford, converged on the defendant’s mobile home. Chief Ford was the first officer to approach the mobile home, as he was the local police chief and he and Mims were acquainted. Ford knocked on the door and Mims answered. Shortly thereafter the other officers entered the mobile home and the search began. Mims was arrested and allowed to dress. A search of Mims’ clothing revealed the marked $20.00 bill which had previously been in Jackson’s possession. In the living room of the mobile home, a deputy spotted a disconnected stereo speaker. There was a tear in the cloth on the front of the speaker. Upon examination, the front of the speaker was removed and a paper bag was discovered, containing approximately 1.7 pounds of a vegetable substance later determined to be marijuana. Inside the speaker the officer also found an envelope addressed to the defendant. The store was also searched and marijuana gleanings were found behind the counter. The officers also found a set of scales and loose cigarette papers. The defendant was charged by bill of information with one count of distribution of marijuana arising from the incident in the store on November 23, 1984 and one count of possession of marijuana with intent to distribute in connection with the marijuana found at his residence and in the store. Counsel for the defendant filed several pretrial motions. On February 28, 1985, a motion to suppress was filed. After a hearing, the motion was denied on April 19, 1985. On September 11, 1985, a motion to quash the information was filed, alleging misjoinder of offenses. Shortly thereafter, another motion to suppress was filed. The trial court minutes indicate that both these motions were denied by the trial court on September 16, 1985 and a jury trial on the merits commenced immediately thereafter. However, after the case was tried, the jury was unable to agree upon a verdict. Accordingly, a mistrial was declared and a new trial date was set. The present trial commenced on November 18, 1985. The defendant was tried before a jury and found guilty as charged. The defendant originally appealed his convictions and sentences to this court alleging numerous assignments of error. In assignments of error 4 and 6, the defendant objected to the selection of an all white jury, claiming the trial court erred in failing to grant a mistrial because the tales jury venire, chosen at random from persons in the hallways of the courthouse after the regular jury venire was exhausted, was all white. We found this assignment of error to be meritless. State v. Mims, 505 So.2d 747 (La.App. 2d Cir.1987). The defendant also claimed that the trial court erred in failing to grant a mistrial because of a pattern of racial discrimination in jury selection. He contended that he was tried by an all white jury at his first trial in September, 1985 and an all white jury was also selected in the instant trial. The record of defendant’s second trial showed that the prosecutor exercised peremptory challenges to exclude members of the defendant’s race from the jury. The defendant claimed that a pattern of discrimination was thereby shown. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), held that a prosecutor’s use of peremptory challenges to exclude blacks from a jury trying a black defendant may be a violation of equal protection. Batson specified that after establishment of a prima facie case of improper use of peremptory challenges, the state must provide racially neutral explanations for the challenges in order to avoid a mistrial. The United States Supreme Court subsequently decided the case of Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Griffith held that Batson applied retroactively to cases pending on direct appeal but not yet final. Therefore, pursuant to Batson and Griffith, supra, we remanded this case to the trial court for a hearing to allow the state an opportunity to provide an explanation for the actions taken in empaneling the jury. State v. Mims, supra. On June 4, 1987, the hearing was held in the trial court and testimony was taken. The trial court ruled that the state provided adequate, racially neutral explanations for its exercise of peremptory challenges of prospective jurors. Therefore, the trial court declined to grant a mistrial. The defendant has again appealed his convictions and sentences, reurging assignments of error 1 through 48 which were presented to this court in the defendant’s original appeal. In addition, the defendant assigns errors 49 through 51, objecting to the trial court ruling that the exclusion of blacks from the jury by the state was not racially motivated. For the following reasons, we affirm the defendant’s convictions and we affirm the trial court ruling regarding the racial makeup of the jury. However, we vacate the sentences imposed upon the defendant and remand to the trial court for resentenc-ing. ASSIGNMENTS 1-3 The defendant begins his numerous assignments of error in this case with complaints concerning the selection of the jury. In his first assignment of error, defendant claims the trial court erred in excluding a prospective juror after it was learned she was no longer a resident of Jackson Parish. However, this assignment of error was not briefed nor argued in brief and it is therefore considered abandoned. State v. Domingue, 298 So.2d 723 (La.1974); State v. Williams, 338 So.2d 672 (La.1976). In assignment of error two, the defendant argues the trial court erred in failing to grant his challenge for cause to a prospective juror who indicated on voir dire that he would hold it against the defendant if he did not testify. In assignment of error three, the defendant contends that the trial court erred in failing to grant his challenge for cause to excuse a prospective juror who was formerly employed by the Jackson Parish District Attorney’s Office. LSA-C.Cr.P. Art. 797 provides in pertinent part: The state or the defendant may challenge a juror for cause on the ground that: (1) The juror lacks a qualification required by law; (2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence; (3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict; The juror will not accept the law as given to him by the court.... A trial judge is vested with broad discretion in ruling on challenges for cause, and only when it appears, upon review of the entire voir dire examination, that the judge’s exercise of that discretion has been arbitrary or unreasonable, resulting in prejudice to the accused, will the court’s ruling be reversed. Refusal to excuse for cause is not an abuse of discretion, notwithstanding that the juror has voiced an opinion seemingly prejudicial to the defense, where subsequently or on further inquiry or instruction, the juror has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. State v. Welcome, 458 So.2d 1235 (La.1983); State v. Wilson, 469 So.2d 1087 (La.App. 2d Cir.1985), writ denied 475 So.2d 778 (La.1985); State v. Murphy, 465 So.2d 811 (La.App. 2d Cir.1985). The defendant objects that the trial court erred in failing to grant his challenge for cause of a prospective juror who was questioned concerning whether he would hold it against the defendant if the defendant did not testify. The juror responded that he would like to hear the defendant’s “side of the story” as to what transpired, but on further examination, the juror clearly indicated that he would be able to fairly and impartially apply the law regarding a defendant’s right against self-incrimination and the presumption of innocence as instructed by the trial court. Therefore, the trial court did not abuse its discretion in failing to grant defendant’s challenge for cause of this juror. The defendant also challenged for cause a prospective juror who had formerly been employed as a secretary in the Jackson Parish District Attorney’s Office and who had worked for the current district attorney and also for the trial judge when he was the district attorney of Jackson Parish. On further examination, the juror stated that her former association with that office would not prejudice her ability to impartially view the facts of the case and she would apply the law as instructed by the trial court. Further, the prospective juror had never worked for the assistant district attorney who was prosecuting this case. Therefore, the trial court did not abuse its discretion in failing to grant defendant’s challenge for cause of this juror. State v. Winn, 412 So.2d 1337 (La.1982); State v. Serigny, 481 So.2d 659 (La.App. 1st Cir.1985), writ denied 484 So.2d 667 (La.1986); State v. Smith, 466 So.2d 1343 (La.App. 3rd Cir.1985). Cf. State v. Lewis, 391 So.2d 1156 (La.1980); State v. Simmons, 390 So.2d 1317 (La.1980); State v. McIntyre, 365 So.2d 1348 (La.1978). ASSIGNMENTS 4 & 6 The defendant has, in this appeal, reurged all of his original assignments of error, including assignments 4 and 6 which dealt with the racial make-up of the jury. In assignment of error 4, the defendant argued the trial court erred in failing to grant a mistrial because the tales jury ve-nire, chosen at random from persons in the hallways of the courthouse after the regular jury venire was exhausted was all white. We found this assignment of error to be meritless in our previous opinion. See State v. Mims, supra. In assignment of error six, the defendant claimed the trial court erred in failing to grant a mistrial because of a pattern of racial discrimination in jury selection shown by the empaneling of an all-white jury. On the basis of this assignment of error, we remanded the case for further proceedings. The defendant complains of the results of those proceedings in this appeal. This issue will be considered and disposed of in our discussion of the trial court’s Batson hearing. ASSIGNMENT 49 In assignment of error forty-nine, the defendant claims the trial court erred in only allowing eight peremptory challenges when the law allows twelve peremptory challenges. At the trial of this case in November of 1985, the trial court allowed the defendant and the prosecution eight peremptory challenges each. LSA-C.Cr.P. Art. 799, which previously set the number of peremptory challenges at eight, was amended in the 1985 session of the legislature to allow twelve peremptory challenges. This change in LSA-C.Cr.P. Art. 799 became effective September 6, 1985. However, at the time of the trial, the defendant failed to make a contemporaneous objection to the number of peremptory challenges allowed by the trial court. LSA-C.Cr.P. Art. 841 provides that an irregularity or error cannot be availed of after verdict unless it was objected to at trial. Therefore, this assignment of error lacks merit. ASSIGNMENT 5 In assignment of error five, the defendant argues the trial court erred in failing to grant a mistrial when, during voir dire, the tales jurors, before being selected as members of the jury, were allowed to go into the jury room with eleven jurors who had already been selected. The record reflects that the jury venire and the impaneled jurors were removed from the courtroom in order for defense counsel to argue his motion for mistrial because of the selection of an all white tales jury venire. The tales jury veniremen were sworn and were undergoing voir dire examination at the time of their exclusion from the courtroom. This procedure was in accordance with the interests of justice as embodied in LSA-C.Cr.P. Art. 794. The impaneled jurors had not been sequestered by the trial court pursuant to LSA-C.Cr.P. Art. 791, or otherwise prohibited from contact with other citizens or veniremen. The defendant has not alleged any misconduct by the jurors and has failed to demonstrate how this action by the trial court prejudiced him in any manner. This assignment or error is meritless. ASSIGNMENTS 7 & 13 In assignment of error seven, the defendant argues the trial court erred in allowing Deputy Sheriff Keith Watkins to testify as to statements made to him by Glen Jackson, who was also present at the trial and who was called as a witness. Hearsay evidence is in-court testimony, or written evidence, of an out-of-court statement offered to show the truth of the matter asserted therein and resting for its value on the credibility of an out-of-court asserter. It is excluded based upon unreliability and the potential unfairness to the accused to permit introduction of statements which cannot be tested by cross-examining the out-of-court declarant. State v. Bazile, 386 So.2d 349 (La.1980). However, when a law enforcement officer testifies concerning events leading to the arrest of a defendant, statements made to him by others during the course of the investigation are not hearsay, because they are not offered for the truth of the matter asserted, but merely to explain events leading to the arrest of the defendant. State v. Bazile, supra; State v. Turner, 392 So.2d 436 (La.1980); State v. Tucker, 405 So.2d 506 (La.1981); State v. Graham, 486 So.2d 1139 (La.App. 2d Cir.1986), writ denied 493 So.2d 633 (La.1986); State v. Jackson, 452 So.2d 1225 (La.App. 2d Cir.1984). The record indicates the state was attempting to elicit from Deputy Watkins the sequence of events leading to the arrest of the defendant. The testimony was offered to explain what had transpired, not to establish the truth of the information given by Jackson. Said another way, the testimony was offered to establish why law enforcement officers did what they did, not to establish that Jackson’s words were true and indicative of the defendant’s guilt. In addition, Jackson, the declarant, was a witness in the case and was present in court and available for cross-examination. Therefore, this testimony was not inadmissible hearsay, the defendant was not denied his right to confrontation and the trial court did not err in overruling the defendant’s objection to this testimony. Closely tied to this assignment of error is assignment of error number thirteen, in which the defendant argues that the trial court erred in failing to grant a mistrial when Deputy Sheriff Keith Watkins testified, in response to questioning by defense counsel, that he accepted the statements of Glen Jackson for the truth of the same and not just because they were made. This assignment of error is again concerned with the statements made by Jackson to Watkins leading ultimately to the arrest of the defendant. In this assignment of error, the defendant again attempts to attack the statement previously admitted by the trial court. The statement by Watkins that he personally believed Jackson does not indicate, as defendant argues, that the statement was offered for the truth of the matter asserted. The statements made by Jackson to Watkins were offered to establish events leading to the arrest of the defendant and this questioning by defense counsel did not change the fact that the statements were not hearsay and were properly admissible. Therefore, assignment of error thirteen is also without merit. ASSIGNMENTS 8, 9, 10, 22, 39, 41, 42 & 44 In assignments of error eight and nine, the defendant argues that the trial court erred in allowing the officers to testify as to the search of the mobile home and the store without laying a proper foundation to show that a search warrant had been issued, and without producing a search warrant in court. In assignment of error number ten, the defendant argues the trial court erred in allowing Deputy Keith Watkins to testify about the search warrant, without producing the search warrant or proving the validity of the search warrant. These assignments of error are closely tied to those assignments objecting to pretrial rulings by the trial court denying the defendant’s motions to suppress the evidence which was obtained pursuant to the search warrant. In assignments of error thirty-nine, forty-one, forty-two and forty-four, the defendant basically questions the validity of the search warrant for the mobile home and the store. In these assignments, the defendant claims that the trial court erred in failing to grant a mistrial when Jackson testified he did not make the statements attributed to him by the affiant in the affidavit in support of the search warrant. He also contends that the trial court erred in denying his motion to suppress on grounds that neither Jackson nor the affi-ant saw marijuana in the defendant’s mobile home or store. The defendant also claimed that the search warrant was invalid in that Jackson did not tell the affiant that the defendant had the marijuana in his mobile home. The judgments and minutes in this record indicate that two motions to suppress were denied by the trial court and a third motion to suppress was withdrawn by counsel of record. However, the defendant failed to designate as part of the record the transcripts of the hearings on the motions to suppress. A party moving for appeal shall request that portion of the proceedings necessary for review in light of the assignments of error to be urged and only that which is in the record may be reviewed. LSA-C.Cr.P. Art. 914.1; State v. Elliott, 467 So.2d 1144 (La.App. 2d Cir.1985). When neither the search warrant nor the affidavit in support of the search warrant are introduced at trial, the appellate court is without authority to supplement the record in that respect and the warrant will not be found defective on the defendant’s mere contention to that effect. State v. Whorton, 440 So.2d 858 (La.App. 2d Cir.1983). Because the defendant failed to designate that portion of the proceedings dealing with the validity of the search warrant, this court will not consider defendant’s assignments of error objecting to the validity of that search warrant. In assignment of error twenty-two, the defendant argues the trial court erred in failing to grant a mistrial when Fred Ford, Chief of Police of East Hodge, admitted that when he entered Mims’ residence he did not have the search warrant in his physical possession, did not produce a search warrant, and lied to the defendant. This argument is without merit. In the early morning hours of November 24, 1984, Chief Fred Ford went to Mims’ residence along with Jackson Parish sheriff’s deputies. Ford’s presence was requested because Mims resided in his juris diction and Mims knew Ford. Ford went to the door of Mims’ residence first, knocked on the door and when Mims came to the door, Ford told him some of the equipment in the store was on fire. These actions were aimed at avoiding either destruction of the evidence or a resort to violence by Mims. Deputy Watkins, who was in possession of the search warrant, then entered the residence. The fact that Chief Ford was not in physical possession of the warrant, did not show it to the defendant, and initially misrepresented the reason for his presence, in order to prevent violence or destruction of evidence, did not vitiate the warrant. Because there is no showing in the record that the search warrant and the resulting search were illegal or improper, these assignments of error are without merit. ASSIGNMENT 11 In assignment of error eleven, the defendant argues that the trial court erred in admitting into evidence the crime laboratory’s certificate of analysis of the marijuana because proper notice had not been given, the certificate was not in proper form, and the certificate did not comply with LSA-R.S. 15:499. The defendant argues first that he did not receive proper notice pursuant to LSA-R.S. 15:501 that the crime laboratory certificate was to be introduced into evidence at trial. LSA-R.S. 15:501, at the time of trial, provided as follows: The party seeking to introduce a certificate made in accordance with LSA-R.S. 15:499 shall, not less than ten days prior to the commencement of trial, give written notice of intent to offer proof by certificate. Such notice shall include a copy of the certificate. The state gave written notice to defendant’s counsel of its intention to introduce the crime laboratory certificate into evidence and furnished a copy of that certificate in compliance with the statute. The notice was mailed on February 8, 1985 and a copy was filed into the record on February 11, 1985. This notice was given prior to the original trial which commenced September 16, 1985 and ended in a mistrial. The defendant argues that the state was required to re-notify him of its intent to use the laboratory certificate at least ten days prior to the commencement of the second trial in November of 1985. This argument is meritless. The purpose of the statute is to inform a defendant that such a certificate exists and that it will be used against him. It prevents any confusion or surprise, and it aids the defendant in preparing an adequate defense. It also relieves crime lab personnel from the necessity of appearing at trial when there is no real question or issue surrounding the validity of the analysis performed by the crime lab technician. In the present case, the defendant had fair warning that the laboratory certificate existed, what it contained, and that the state intended to introduce it as evidence against him. The defendant does not show how he was prejudiced by the use of the certificate. The defendant cites no authority for his argument that a new notice was required following a mistrial. We conclude that the statute does not require a renewal of notice. Defendant’s argument is meritless. The defendant also claims the certificate was not in proper form as required by LSA-R.S. 15:499, which provides as follows: All criminalistics laboratories established by laws of this state or by laws of the United States are authorized to make proof of the results of laboratory examinations of physical evidence by the certificate of the person in charge of such laboratory. Such certificate shall list: (1) The date and time such evidence was delivered to such laboratory. (2) The name of the person making such delivery. (3) The name of the person taking such delivery. (4) A brief description of the evidence. (5) The type of examination requested. (6) The name of the person making the examination. (7) The date or dates of the examination. (8) The results of the examination; and (9) The certificate of analysis shall be signed by the person making the examination and by the person in charge of the laboratory. Defendant argues the certificate was not in proper form in that it did not specify that the substance analyzed and determined to be marijuana was an illegal type of marijuana. For the reasons set forth in our discussion of Assignment 27, we find this argument to be specious at best, and totally without merit. ASSIGNMENT 14 In assignment of error number fourteen, the defendant claims the trial court erred in failing to grant a mistrial on the grounds that the state provided erroneous information in its response to the defendant’s application for a bill of particulars. In the motion for bill of particulars, defendant sought to determine where the alleged controlled dangerous substance was being kept pending trial. The state indicated in its response that on February 11, 1985, the alleged controlled dangerous substance was in the possession of Deputy Keith Watkins. At trial, it was learned that the alleged controlled dangerous substance remained in the custody of the crime laboratory from the time of its analysis until the time of commencement of the original trial on September 16, 1985. The defendant claims he was prejudiced by this erroneous information in that he failed to subpoena any personnel from the crime laboratory to account for the whereabouts of the alleged controlled dangerous substance from February 11, 1985 until September 16, 1985. Defendant’s argument is meritless. The purpose of a bill of particulars is to provide the accused with sufficient information as to the nature and cause of the offense with which he is charged. State v. Frith, 436 So.2d 623 (La.App. 3rd Cir.1983), writ denied 440 So.2d 731 (La.1983). In this case, the defendant was adequately informed of the charges against him. Further, the inadvertent error by the state in this answer as to the actual location of the alleged marijuana did not prejudice the defendant. First, the defendant was aware that the alleged controlled dangerous substance was submitted to the crime laboratory for analysis and he had the opportunity to subpoena the crime lab personnel to appear at trial. Second, the defendant made no contention that the chain of custody of this evidence was broken. The chain of custody was clearly established at trial. All of the testimony relating to the marijuana clearly showed that the marijuana introduced into evidence at trial was the marijuana seized or obtained from the defendant. There is no indication that the marijuana had been altered in any way. No prejudice is shown to have resulted from the misstatement in the answer to the motion for bill of particulars and defendant cites no jurisprudence in support of his claim. This claim has no merit. ASSIGNMENTS 15-18 The defendant argues several assignments of error dealing with the expert testimony of Jim Tuten, a special investigator with the Lincoln Parish District Attorney’s Office, regarding the procedures and techniques used by offenders who are involved in the illegal use and distribution of controlled dangerous substances, including marijuana. On questions involving knowledge obtained only by means of special training or experience, the opinions of persons having such special knowledge are admissible as expert testimony. LSA-R.S. 15:464. Ev ery expert witness must state the facts upon which his opinion is based. LSA-R.S. 15:465. The test of competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency to so testify must have been established to the satisfaction of the court. LSA-R.S. 15:466. In assignment of error fifteen, the defendant argues the trial court erred in finding that a field of expertise exists as to procedures and techniques involved in the illegal use and distribution of controlled dangerous substances. Such a field of expertise has long been recognized. State v. White, 450 So.2d 648 (La.1984); State v. Clay, 408 So.2d 1295 (La.1982); State v. Carter, 347 So.2d 236 (La.1977). The trial court recognition of this field of expertise was not error. In assignment of error sixteen, the defendant argues the trial court erred in allowing Tuten to qualify as an expert, when he had never previously qualified as such. The trial court is granted much discretion regarding the competence of experts and that discretion will be upheld absent a showing of manifest abuse of discretion. State v. Rives, 407 So.2d 1195 (La.1981); State v. Green, 437 So.2d 302 (La.App. 2d Cir.1983), writ denied 443 So.2d 1121 (La.1984). In the present case, there was a sufficient showing that Tuten, an investigator with several years experience in the investigation of drug trafficking, possessed the special knowledge and training necessary to qualify as an expert in the field of procedures and techniques involved in the illegal use and distribution of controlled dangerous substances. The defendant has made no showing of a manifest abuse of discretion by the trial court. Therefore, defendant’s argument is meritless. In assignment of error seventeen, the defendant argues the trial court erred in allowing Tuten to testify as to the value of controlled dangerous substances because his knowledge was based upon hearsay. Allowing a law enforcement officer to testify regarding the street value of narcotics in light of his special training and experience is accepted in our courts. State v. Brown, 479 So.2d 464 (La.App. 1st Cir.1985). A witness must set forth the facts upon which his opinion is based. State v. Brown, supra. The witness in this case fully set forth the facts upon which his opinion was based and did not repeat any particular statement of an out-of-court de-clarant. This assignment of error is merit-less. In assignment of error eighteen, the defendant argues that the trial court erred in allowing Tuten to testify as to whether the controlled dangerous substance in this case was “home grown” or not. This testimony appears to be irrelevant. However, the defendant has made no showing of prejudice in the admission of the statement. LSA-C.Cr.P. Art. 921. Therefore, this assignment of error is without merit. ASSIGNMENT 19 In assignment of error nineteen, the defendant argues the trial court erred in failing to grant a mistrial when the prosecuting attorney referred to the vegetable matter in question as “dope” in a loud voice. LSA-C.Cr.P. Art. 770 sets forth the type of prejudicial remarks which form mandatory grounds for a mistrial: Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to: (1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury; (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible; (3) The failure of the defendant to testify in his own defense; or (4) The refusal of the judge to direct a verdict. An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial. As can be seen, the remark in this case does not fall under LSA-C.Cr.P. Art. 770, but deserves consideration under LSA-C. Cr.P. Art. 771, which provides in pertinent part: In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury: (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770: ... In such cases, on motion of the defendant, the court may grant a mistrial if he is satisfied that an admonition is not sufficient to assure the defendant a fair trial. The defendant has failed to show any prejudice created by this remark. Although an admonition may have been proper, defense counsel failed to seek an admonition of the jury under LSA-C.Cr.P. Art. 771. Under the facts of this case, the trial court did err in refusing to grant defendant’s request for a mistrial. ASSIGNMENTS 20, 23 & 24 The defendant argues several assignments of error concerning communications between jurors and witnesses. In assignment of error twenty, the defendant urges the trial court erred in failing to grant a mistrial when, as the jury was filing out of the courtroom, a member of the jury spoke to Jim Tuten and asked whether Tuten knew a former officer with the Ruston Police Department and Tuten answered that he did. In assignment of error twenty-four, defendant argues the trial court erred in failing to grant a mistrial when a witness, Chief Fred Ford, engaged in conversation with a juror as the jury was filing out of the courtroom. It is well settled that communications between jurors and witnesses in a criminal trial, without a showing that the defendant was prejudiced, furnishes no ground for upsetting a conviction. State v. Daniel, 378 So.2d 1361 (La.1979); State v. Green, supra. In the present case, the defendant has failed to make any showing that the communications between the witnesses and the jurors prejudiced him in any way. As to assignment of error twenty, Tuten testified the juror asked him if he knew a former officer of the Ruston Police Department. Tuten responded affirmatively. There was no further conversation. As to assignment of error twenty-four, the defendant failed to show that the witness, Fred Ford, and the juror actually engaged in conversation. In assignment of error twenty-three, the defendant argues the trial court erred in failing to grant a mistrial when the prosecuting attorney made a statement to a juror and to a witness, Chief Fred Ford, not to talk to each other because a motion for mistrial had already been made on a similar basis. The prosecuting attorney testified that he saw Ford and the juror approach each other and he cautioned Ford against talking to the juror. When Ford seemed to ignore him, the prosecutor stated he indicated to Ford that a motion for a mistrial had already been made on a similar basis. There is no indication that the juror or any other member of the jury heard the prosecutor’s statement. Neither Ford nor the juror were questioned regarding the incident. The defendant failed to make any showing of prejudice nor did he request an admonition under LSA-C.Cr.P. Art. 771. These assignments of error are without merit. ASSIGNMENTS 12 & 21 In assignment of error twelve, the defendant argues the trial court erred in allowing the exhibition of scales and photographs that had not yet been admitted into evidence. In assignment of error twenty-one, the defendant argues the trial court erred in allowing Jim Tuten to testify about a set of scales and cigarette rolling papers which had also not yet been admitted into evidence. These assignments of error are without merit. At one point in the trial, the defendant objected to the prosecutor displaying, in view of the jury, a set of scales. Later in the trial, the prosecutor elicited from Jim Tuten testimony regarding the use of cigarette papers and scales of the type seized from the defendant. Tuten testified these items were commonly associated with the use and distribution of marijuana. These items were then properly admitted into evidence and the jury was allowed to view the items. Earlier, a picture of the scales along with marijuana and money seized from the defendant was properly admitted into evidence. Defendant has failed to show any prejudice or any error committed by the trial court which would support these two assignments of error. Therefore, these assignments of error are deemed meritless. ASSIGNMENT 25 In assignment of error twenty-five, the defendant argues the trial court erred in allowing the state to ask leading questions of its own witness, Glen Jackson. The defendant claims the prosecution im-permissibly led its witness in the following exchange: Q. [by the prosecutor] Did you have anything in your pockets? A. [by the witness] Oh no. Nothing but some money. Q. [by the prosecutor] Okay what kind of money did you have in your pockets? A. [by the witness] I had one twenty and two tens. Q. [by the prosecutor] Are you certain that you had two ten dollar bills? LSA-R.S. 15:277 provides: A leading question is one which suggests to the witness the answer he is to deliver, and though framed in the alternative, is inadmissible when propounded to one’s own witness, unless such witness be unwilling or hostile. It is not clear from the last question if the prosecution was in fact leading the witness or instead, attempting to gain clarification of the witness’ answer. Assuming for the sake of argument that the last question propounded by the prosecution was a leading question, the defendant has failed to show that the question in any way prejudiced his rights, or that the actions of the prosecution constituted an attempt to prejudice his rights. A verdict will not be disturbed on the basis of a leading question absent such a showing. State v. Quincy, 363 So.2d 647 (La.1978); State v. Swift, 363 So.2d 499 (La.1978). ASSIGNMENT 26 In assignment of error twenty-six, the defendant argues the trial court erred in allowing the state to impeach the testimony of its own witness, Glen Jackson. LSA-R. S. 15:487 provides: No one can impeach his own witness, unless he have (sic) been taken by surprise by the testimony of such witness, or unless the witness show (sic) hostility toward him, and, even then, the impeachment must be limited to evidence of prior contradictory statements. The defendant did not offer specific instances in which the state sought to impeach its own witness. The record reveals instances in which the state attempted to clarify answers given by the witness. Because the defendant has failed to show that the state impermissibly sought to impeach its witness, this assignment of error is without merit. ASSIGNMENT 27 In assignment of error twenty-seven, the defendant claims the trial court erred in refusing to allow defense counsel to argue to the jury that the only type of marijuana that is illegal is “marijuana, tet-rahydrocannabinols.” This argument is totally meritless. Defendant argues that there is such a thing as legal marijuana and he contends that his position was supported at trial by the testimony of the state’s expert witness, Jim Tuten. Defendant argues that LSA-R. S. 40:964 and LSA-R.S. 40:966, which prohibit the use, possession or distribution of marijuana, prohibits only a type of marijuana known as tetrahydrocannabinols. Defendant bases this argument on the listing of Schedule I controlled dangerous substances contained in LSA-R.S. 40:964. This schedule lists marijuana, tetrahydro-cannabinols, or chemical derivatives thereof, as controlled dangerous substances. Defendant’s argument is erroneous. First, he has failed to correctly read the listing in the statute. The statutes are structured disjunctively and lists as controlled dangerous substances, marijuana, or tetrahydrocannabinols or chemical derivatives of tetrahydrocannabinols. Second, tetrahydrocannabinol is the chemical ingredient in marijuana that causes the intoxicating effect. This chemical is frequently referred to as THC. It is not a separate species of marijuana. Marijuana, of course, by chemical definition, contains THC. Third, the defendant errs in arguing that the state’s expert witness supported his position that there exists such a thing as legal marijuana. The record simply does not support the view that the expert made such a statement. The exchange between defense counsel and the state’s expert is as follows: Q. [by defense counsel] Are you aware that all types of marijuana are not illegal? A. [by witness] The cannabis stative L strain of marijuana is classified and marijuana is classified as a controlled dangerous substance under schedule #1. Q. [by defense counsel] Okay. But that is the only one that is so-classified under schedule # 1, is it not? A. [by witness] Answer if given, not audible. Q. [by defense counsel] Okay. BY MR. MAY OF COUNSEL FOR THE STATE: Your Honor, excuse my interruption. I’m not sure that answer was picked up on the record. BY THE COURT: If you will answer it please Officer Tuten? A. [by witness] Yes. This exchange shows that the expert witness said marijuana was classified as a controlled dangerous substance. He did not say that there was such a thing as legal marijuana. The argument that some types of marijuana are legal has been raised previously and rejected by this court. Cf. State v. Bates, 301 So.2d 619 (La.1974). ASSIGNMENT 28 In assignment of error twenty-eight, the defendant argues the trial court erred in refusing to allow the introduction into evidence by the defendant of pages 98 and 99 of a transcript of testimony previously given by Glen Jackson. LSA-R.S. 15:493 provides: Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible. The defendant offered the transcript of prior testimony by Glen Jackson in an attempt to impeach the witness. The record indicates Jackson did not initially admit making the statements attributed to him. At that point, the defendant should have been allowed to use prior inconsistent statements to impeach the witness. The trial court erred in refusing to allow admis sion of the statements. However, a review of the record reveals that this constituted harmless error under the particular facts of this case. LSA-C.Cr.P. Art. 921. The jury was clearly informed of Jackson’s earlier statements and their inconsistent nature through cross-examination of the witness by defense counsel. State v. Gomez, 365 So.2d 1313 (La.1979); State v. Wilson, 360 So.2d 166 (La.1978). ASSIGNMENTS 29 & 30 In assignment of error twenty-nine, the defendant argues the trial court erred in allowing the prosecutor to argue to the jury that according to the “book” the vegetable substance identified as marijuana is illegal. In assignment of error thirty, the defendant claims the trial court erred in allowing the prosecutor “to argue to the jury what the law says, without allowing the attorney for the defendant to so argue the law.” In these two assignments of error, the defendant again contends that there is legal marijuana and he should have been allowed to present that argument to the jury. Defendant also claims that only the court, and not the prosecutor, may set forth to the jury the applicable law in a case. Both arguments are meritless. As stated earlier, defendant’s argument regarding legal marijuana is erroneous and the trial court acted properly in refusing to allow defense counsel to make such an erroneous argument to the jury. Although the jury is ultimately bound to follow the law given by the trial judge in his jury charge, the defendant is in error in contending that the prosecution was precluded from mentioning the law applicable to the case in his closing argument. LSA-C.Cr.P. Art. 774 provides that arguments of counsel are confined to evidence admitted, lack of evidence, to conclusions of fact the parties may have drawn from the evidence and “the law applicable to the case.” These assignments of error have no merit. ASSIGNMENT 31 In assignment of error thirty-one, defendant argues the trial court erred in failing to grant a mistrial when the prosecutor, in his closing argument, told the jury that the defendant should have proven who was in the house on the night in question. This argument is meritless. A review of the record indicates the prosecutor did not make such a statement. Therefore, there is no factual basis for this argument. ASSIGNMENT 32 In assignment of error thirty-two, the defendant argues the trial court erred in allowing the jury to examine, and the prosecutor to exhibit to the jury, an envelope addressed to the defendant. This argument is meritless. In his closing argument, defense counsel argued the state failed to prove that the defendant owned the mobile home from which the marijuana was recovered. In rebuttal, the prosecutor exhibited an envelope addressed to the defendant which had been admitted in evidence and which had been recovered in the search of the defendant’s house trailer. LSA-C.Cr.P. Art. 774 clearly allows the prosecutor to display to the jury evidence admitted during the trial and to present arguments concerning the effect of that evidence. The defendant failed to show any error in the procedure followed by the trial court during the state’s argument. ASSIGNMENTS 33 & 34 In assignment of error thirty-three, the defendant argues the trial court erred in allowing the prosecutor to refer to friends of Glen Jackson who were present in the courtroom. In assignment of error thirty-four, the defendant argues the trial court erred in allowing the prosecutor to argue that the case was serious to the community. These assignments are meritless. The reference to friends of Glen Jackson was an argument by the state that some credibility should be afforded Jackson’s testimony because he came into open court and testified. There was nothing improper or prejudicial about the remark. In assignment of error thirty-four, the state was responding to an argument by defense counsel that the charges involved in the case were serious to the defendant. In response to that argument, the state remarked, “Who else in the community are these serious charges to?” The remark was not prejudicial and the topic was not pursued by the prosecutor. The context in which the statement was made shows that it was not inflammatory. The trial court did not err in failing to grant a mistrial on the basis of that statement. ASSIGNMENTS 35 & 38 In assignment of error thirty-five, the defendant argues the trial court erred in failing to properly instruct the jury as to the definition of marijuana, to include “marijuana, tetrahydrocannabinols,” at all points where the word “marijuana” was used in the jury instructions. In assignment of error thirty-eight, the defendant argues the trial court erred in refusing to give defendant’s requested jury instruction number 5 to the effect that in order to convict the defendant, the state must prove beyond a reasonable doubt that the substance in question in this case was tetrahydrocannabinols. This argument has been dealt with above. The trial court did not err in failing to instruct the jury on an erroneous premise of law. ASSIGNMENTS 36 & 37 In assignment of error thirty-six, the defendant claims the trial court erred in giving the jury an improper definition and/or explanation of the law on the defense of entrapment. In assignment of error thirty-seven, the defendant argues the trial court erred in refusing to give defendant’s requested jury instruction regarding entrapment. These arguments are meritless. LSA-C.Cr.P. Art. 807 provides: The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court. A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given. The defendant’s requested jury instruction, citing State v. Batiste, 363 So.2d 639 (La.1978), is as follows: Under the generally accepted view, an entrapment is perpetuated when a law enforcement official or a person acting in cooperation with such an official, for the purpose of obtaining evidence of the commission of an offense, solicits, encourages or otherwise induces another person to engage in conduct constituting such offense when he or she is not then otherwise disposed to do so. If you find entrapment present in the present case you should not vote guilty. The jury instruction actually given by the court is as follows: A defendant who is instigated or induced by a law enforcement officer or someone acting for him into the commission of a crime which he otherwise had no intention of committing is not guilty because he was entrapped. Entrapment is shown when it appears that an officer or someone acting for an officer instigated the defendant to commit an offense which the defendant otherwise would not have committed and had no intention of committing. It is not entrapment, however, if the defendant already had the requisite criminal intent and the officer or someone acting for him merely furnished the defendant with the opportunity to commit the offense. The fact that an opportunity is furnished or that the defendant is aided in the commission of a crime which originated in his own mind is no defense. There’s clear distinction between inducing a person to commit a crime and setting a trap to catch a person who (sic) carrying out criminal de signs of his own conception. The primary emphasis is on whether or not the defendant had a pre-disposition to commit the crime. The reason for this defense is simple. Officers of the law may not incite crime, merely to punish the criminal. Thus if you find one, that the defendant did not have an intent to commit the offense charged before being institated (sic) to commit it and two, that the defendant was instigated to commit the offense charged by a law enforcement officer or one acting as an officer’s agent, then you must find the defendant not guilty. The record shows that the charge given by the court included the special charge on entrapment requested by the defendant. The trial judge’s charge is taken directly from Louisiana Judge’s Bench Book, Vol. 1, Jury Instructions, Criminal (1978). Defendant’s assignment of error is merit-less. ASSIGNMENT 40 In assignment of error forty, the defendant argues the trial court erred in refusing to require the state of Louisiana to turn over to defense counsel the entire taped statement of Glen Jackson, contrary to the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1965). This argument is meritless. The defendant filed a motion for production of the taped statement of Glen Jackson, or in the alternative for an in camera inspection by the court to determine if the statement contained exculpatory evidence. In response to that motion, the tape was turned over to the court. The court made an in camera inspection and provided defendant with those portions of the statement that might be deemed exculpatory. The defendant did not request that the taped statement be sealed and made part of the record on appeal. See State v. Oliver, 430 So.2d 650 (La.1983). From the record before us, we cannot say that the trial court erred in allowing the defendant only those portions of the taped statement found to be exculpatory following the trial court’s in camera inspection. ASSIGNMENT 43 In assignment of error forty-three, the defendant claims the trial court erred in denying his motion to quash filed September 10, 1985. In this motion, the defendant objected to the joinder of offenses. The defendant claims that the joining of Count 1, distribution of marijuana, and Count 2, possession with intent to distribute marijuana, constituted a misjoinder of offenses because the defendant would testify as to Count 1 but not as to Count 2 and that the offenses are different and not connected in time or place. The trial court minutes indicate this motion was denied because it was not filed within 15 days after arraignment. LSA-C. Cr.P. Art. 521, 535. As with defendant’s motion to suppress, the defendant has failed to provide this court with a transcript of the hearing on the motion to quash. However, it appears that these offenses were properly joined under LSA-C.Cr.P. Art. 493. The offenses are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan and are triable by the same mode of trial. Even though legally joined, offenses may be severable if the jury would be confused by the various counts; the jury would be unable to segregate the various charges and evidence; the defendant would be confounded in presenting his various defenses; the crimes charged would be used by the jury to infer a criminal disposition; or the charging of various crimes would make the jury hostile. State v. Washington, 386 So.2d 1368 (La.1980). Neither the charges nor the evidence adduced to prove them were complex. The evidence of each offense was easily distinguished, and the charges relatively simple. The defendant made no showing as to how the jury would become confused, or that his defense was confounded by the joinder. Nor do we perceive that the jury would be prejudiced or hostile toward the defendant due to the joinder of these offenses. This assignment of error has no merit. ASSIGNMENT 45 In assignment of error forty-five, the defendant argues the trial court erred in denying defendant’s motion in arrest of judgment. The defendant filed a motion in arrest of judgment pursuant to LSA-C.Cr.P. Art. 859, claiming the bill of information which was filed against him was substantially defective. He contends that although the bill of information charged him with possession with intent to distribute marijuana and distribution of marijuana, it is defective in that it did not refer to “marijuana tetrahydrocannabinols.” Defendant’s argument that “marijuana, tetrahydrocanna-binols” is the only type of illegal marijuana has been rejected above and is again rejected here. ASSIGNMENT 46 In assignment of error forty-six, defendant claims the trial court erred in denying his motion for new trial. In the motion for new trial, the defendant claims the verdict against him was contrary to the law and the evidence because the evidence was insufficient to support the convictions. Defendant claims the state offered no proof that the substance involved was a controlled dangerous substance, that the defendant exercised dominion and control over the substance, or that others did not have access to the store or mobile home where the marijuana was found. Defendant’s argument is meritless. In considering the standard of review for sufficiency of evidence, the reviewing court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Nealy, 450 So.2d 634 (La.1984). The analysis by the crime laboratory was more than adequate to establish that the substance which the defendant distributed to Glen Jackson and the substance seized from the defendant’s mobile home was marijuana, which is a controlled dangerous substance. As to Count 1 of the information charging the defendant with distribution of marijuana, Glen Jackson testified that the defendant sold him a bag of marijuana. Officers outside the store saw the defendant hand the package to Jackson. The package was recovered from Jackson immediately after he exited the defendant’s store. This evidence clearly proves beyond a reasonable doubt that the defendant committed the offense of distribution of marijuana. As to Count 2 of the information which charges the defendant with possession of marijuana with intent to distribute, law enforcement officials obtained a search warrant for the defendant’s residence. It was well known that the defendant operated the store and lived in the mobile home beside the store. Inside the mobile home, law enforcement officials found quantities of marijuana indicating that the defendant was distributing this controlled dangerous substance and also found a set of scales commonly used to weigh the substance for distribution. Expert testimony was presented to the jury which described the manner of operation utilized by those who distribute controlled dangerous substances. The evidence presented to the jury was sufficient to justify defendant’s convictions. ASSIGNMENTS 47 & 48 In assignments of error forty-seven and forty-eight, the defendant argues the trial court erred in failing to follow the sentencing guidelines of LSA-C.Cr.P. Art. 894.1 and in imposing sentences which are unconstitutionally excessive. These assignments of error have merit and for the following reasons we vacate the sentences and remand to the trial court for reconsideration and resentencing. The defendant was 28 years old at the time of sentencing on April 11, 1986. The trial court did not order a presentence investigation. At the sentencing hearing, the trial court sentenced the defendant on each count to the maximum penalty possible under LSA-R.S. 40:966, ten years at hard labor and a fine of $15,000.00. The court also ordered the defendant to serve an additional sentence of one year in default of payment of the fine on each count. The court also ordered that the sentences on Count 1 and Count 2 be served consecutively, rather than concurrently. Our review of the sentencing proceedings reveal that the trial court did not adequately state for the record the sentencing considerations set forth in LSA-C.Cr.P. Art. 894.1 which would justify the imposition of maximum penalties for these offenses. In articulating the reasons for sentence, the trial court indicated the defendant had a prior felony conviction for attempted distribution of marijuana on April 12, 1982 and was therefore not eligible for suspended sentences on these convictions. Although the trial court stated that the defendant was an habitual offender, the record does not reflect that he was adjudicated as such pursuant to LSA-R.S. 15:529.1. The court also found that imprisonment would not impose an undue hardship on the defendant. These are very general statements by the court and are not supported in the record in light of the absence of a presentence investigation in which reference was made to mitigating factors. Therefore, the sentences must be vacated and the defendant’s case remanded for resentencing in compliance with the provisions of LSA-C.Cr.P. Art. 894.1. Also, a review of the record fails to reveal an adequate articulation of the reasons for sentence in light of the consecutive sentences actually imposed. LSA-C. Cr.P. Art. 883 provides that if a defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. In the present case, the two offenses for which the defendant was convicted arise from “the same act or transaction, or constitute parts of a common scheme or plan.” The same factors which permit joinder of the offenses militate in favor of concurrent sentencing, unless the trial court articulates other appropriate factors in imposing sentence. State v. Ashley, 463 So.2d 794 (La.App. 2d Cir.1985); State v. Gage, 399 So.2d 1174 (La.1981). The trial court should explain the reasons for imposing consecutive sentences. In this case, there was no articulation of the factors considered which would explain the imposition of these two maximum sentences, imposed consecutively. Therefore, the sentences imposed, being apparently severe, must be set aside and this case must be remanded to the trial court for resentencing. Also, we note that the trial court ordered the defendant to serve additional terms of imprisonment at hard labor in lieu of payment of the fines. At the trial and at resentencing, the defendant was represented by retained counsel. The record does not indicate that the defendant was indigent at the time of sentencing. However, the defendant was subsequently determined to be an indigent and allowed to proceed with this appeal in forma pauperis. The jurisprudence reveals that a court may not impose default time in lieu of payment of a fine upon an indigent defendant, when to do so would cause the term of imprisonment to exceed the statutory maximum, as it would in this case. State v. Garrett, 484 So.2d 662 (La.1986); State v. Williams, 484 So.2d 662 (La.1986); State v. Barlow, 488 So.2d 180 (La.1986); State v. Pinkney, 488 So.2d 682 (La.1986); State v. Gooden, 490 So.2d 622 (La.App. 2d Cir.1986). Upon remand, the trial court must also reconsider this aspect of the sentences to be imposed in light of the defendant’s indigency. In addition, we note that LSA-C.Cr.P. Article 884, dealing with the imposition of imprisonment in lieu of payment of fines, does not authorize the default time to be served at hard labor. ASSIGNMENTS 49, 50 and 51 At the trial which resulted in the defendant’s convictions, four black jurors were excluded from jury service, three by peremptory challenges exercised by the prosecutor, and one for cause because she was no longer a resident of the parish. When this case was originally before this court on appeal, no racially neutral explanation appeared in the record which would support the state’s exercise of peremptory challenges of the three black members of the jury venire. Based upon Batson v. Kentucky, supra, we found that the defendant had properly objected to the state’s jury selection strategy and had established a prima facie case that the state had used peremptory challenges to exclude prospective jurors on the basis of race. Therefore, we remanded this case to the trial court to allow the state an opportunity to set forth on the record the reasons for exercising peremptory challenges of the disputed prospective jurors. We instructed that if the state failed to provide racially neutral explanations for the use of the peremptory challenges, then the trial court must vacate the convictions and declare a mistrial. Following the hearing on remand, the trial court found the state had carried its burden of showing racially neutral reasons for the use of its peremptory challenges of the three black prospective jurors. The defendant again appealed his convictions and sentences, reurging his original assignments of error and assigning three additional assignments of error dealing with the Batson hearing. We find each of the assignments of error to be meritless. In assignment of error forty-nine, the defendant argues the trial court erred in allowing the prosecutor handling the defendant’s trial to testify regarding his subjective appraisal of the three black prospective jurors who were excused by the use of peremptory challenges. Defense counsel objected at the hearing to any testimony not reflected by the transcript of the voir dire examination. This argument is merit-less. In U.S. v. Forbes, 816 F.2d 1006 (5th Cir.1987), the court required the prosecutor to state for the record his reasons for making the challenges. In that case, the prosecutor stated that one juror had two sons who were in legal trouble and the second juror was challenged because she sat with her arms crossed during voir dire and impressed him as being hostile to serving on the jury. In U.S. v. Williams, 822 F.2d 512 (5th Cir.1987) the defendant objected to the prosecution’s use of three peremptory challenges of black prospective jurors. The prosecution then stated for the record reasons for exercise of the peremptory challenges. The first prospective juror was challenged because he was acquainted with defense counsel. The second prospective juror was challenged peremptorily because he had previously been arrested by a government witness and was reputed to use narcotics. The third juror was challenged because he was regarded by law enforcement officials in his community as “a poor juror for a drug case.” No further explanation was offered as to why this prospective juror would be a “poor juror” for such a case. All three explanations were accepted by the court. Therefore, considering the explanations given in other cases for exercise of peremptory challenges of black prospective jurors, we find that the trial court did not err in allowing the prosecutor to testify as to his subjective determination regarding the use of the peremptory challenges in the present case. In assignment of error fifty, the defendant argues the trial court erred in refusing to allow defense counsel to question the prosecutor regarding the jury selection process used in the previous trial of this case which commenced September 16, 1985 and ended in a mistrial. The defendant contends that at the previous trial, since an all white jury was selected, defense counsel should have been allowed to question the prosecutor regarding that trial. The trial court correctly sustained the state’s objection to this line of questioning on grounds of relevancy. Under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), in order to overturn a jury verdict based upon unconstitutional exclusions of a particular group from a jury, the defendant was required to show a systematic exclusion by the state of members of the race or group over a period of time. Batson modified the standard set forth in Swain. The U.S. Supreme Court recognized that a defendant may make a prima facie showing of purposeful racial discrimination in selection of the jury venire by relying solely on the facts concerning its selection in his case. Therefore, the jury selection process employed in the defendant’s prior trial was not necessarily probative of the motives of the state in exercising peremptory challenges at the second trial. In assignment of error fifty-one, the defendant argues the trial court erred in finding that the state has provided racially neutral explanations for its exercise of peremptory challenges. This argument is meritless. In Batson, supra, the court stated that since the trial judge’s findings regarding the proper exercise of peremptory challenges will turn largely upon an evaluation of credibility, a reviewing court should give those findings great defference. U.S. v. Forbes, supra; U.S. v. Williams, supra. In the present case, the trial court found that the prosecutor provided racially neutral explanations for the use of the disputed peremptory challenges. We do not find the trial court’s evaluations to be in error. In the present case, the prosecutor testified that one juror was challenged because her brother had been tried for armed robbery and he had been defended by present defense counsel. At her brother’s trial, the prospective juror had testified as an alibi witness. In addition, when questioned by the state on voir dire, this prospective juror did not mention her brother’s offense, but did say that she was acquainted with defense counsel and that defense counsel had aided her son in getting his driver’s license back after an accident. Acquaintance with counsel or connection with other criminal prosecutions have both been found to be sufficient explanations for exercise of peremptory challenges under post-Batson decisions. U.S. v. Forbes, supra; U.S. v. Williams, supra; State v. Brown, 507 So.2d 304 (La.App. 3rd Cir.1987). A second black prospective juror was challenged because her husband was belligerent to local law enforcement officials and the prosecutor believed that the prospective juror’s husband had misdemeanor charges pending in the parish. Cf. U.S. v. Forbes, supra. The prosecutor clearly testified that race had nothing to do with the exercise of this peremptory challenge. The final black prospective juror challenged peremptorily by the prosecution was a young, black, unemployed mother of an illegitimate child. The prosecutor testified that he felt this lady was mentally retarded and not sufficiently aware of what was happening in the courtroom. The prosecutor testified that the juror’s condition was so apparent to him that he asked no questions of her on voir dire. In State v. Eames, 365 So.2d 1361 (La.1978), Justice Dennis, in a concurring opinion, stated that the state must show that the exercise of peremptory challenges was not racially motivated and that although the reasons for exercising such challenges need not be sufficient to support a challenge for cause, they should appear to be applied consistently to similarly situated jurors of other groups. In his brief, the defendant argues that during voir dire the state had failed to challenge a white male juror who was also of questionable intellectual capabilities. Although evidence on the issue is scant, the defendant is apparently arguing that the state failed to carry its burden of providing a racially neutral explanation for the challenge of the black juror since the white juror was not challenged. At the Batson hearing, the prosecutor stated he was aware that the white juror had some problems, but the juror seemed alert, was willing to serve and appeared to be capable of serving on the jury, whereas the black juror did not appear capable of comprehending the proceedings. The trial court accepted these explanations. The record supports the trial court’s ruling finding that the state provided racially neutral explanations for the exercise of its peremptory challenges of the black prospective jurors in this case. CONCLUSION For the above stated reasons, we affirm the defendant’s convictions for distribution of marijuana and possession of marijuana with intent to distribute. We affirm the trial court ruling that the state provided racially neutral explanations for the exercise of its peremptory challenges of black prospective jurors. However, we vacate the sentences imposed by the trial court and remand to that court for resentencing and further articulation, both as to the length of the sentences imposed, and a determination of whether the sentences are to be served consecutively or concurrently. We also remand for reconsideration of that portion of the sentences requiring the defendant to serve additional terms of imprisonment in lieu of payment of the fines. CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED FOR RESENTENCING. . LSA-R.S. 15:501 was amended by Acts 1986, No. 675, § 1 to read as follows: A. The party seeking to introduce a certificate made in accordance with R.S. 15:499 shall, not less than ten days prior to the commencement of trial, give written notice of intent to offer proof by certificate. Such notice shall include a copy of the certificate. B. The party against whom such a certificate is offered shall be permitted to subpoena on cross-examination the person who performed the examination or analysis of the evidence. If the subpoena is requested at least five days prior to the commencement of trial or the person subpoenaed responds to the subpoena, the certificate shall not be prima facie proof of its contents or of proper custody. The change has no bearing on this opinion.

CIACCIO, Judge. Plaintiff, Winona Musselman and defendant, Robert Musselman, each appeal from a judgment of the district court which awarded Mrs. Musselman permanent alimony of $795.90 per month. We affirm the judgment of the district court. The parties were married January 22, 1961 and had one child of their marriage. A judgment of divorce was rendered on December 15, 1983 at which time the issue of fault was pretermitted. On July 10, 1986 the trial court found both parties to be free from fault and entitled to alimony. That judgment was affirmed by this Court. Musselman v. Musselman, 508 So.2d 122 (La.App., 4th Cir., 1987). The parties agreed to an alimony payment of $1,500 per month. On September 9, 1986 Dr. Musselman filed a rule to terminate and/or reduce permanent alimony. A hearing on this rule was conducted on October 21, 1986, and on November 13, 1986, judgment was rendered fixing permanent alimony payable to Mrs. Musselman at $795.90 per month retroactive to the date of the filing of the rule. The judgment also awarded Mrs. Musselman unpaid support payments of $6,790.35 with interest from the date each payment was due. The court rendered reasons for judgment which state, in pertinent part: Winona Musselman is presently gainfully employed and receives a gross monthly pay of $758.33 and a net take home pay of $646.11. She asserts total monthly expenses of $2,322.00. The Court finds that some of the expenses which Winona Musselman claims are not “necessary” as that term applies to permanent alimony. To her, the expenses may be necessary; but in law they are luxuries. Nevertheless, the Court concludes that her income (exclusive of alimony payments) is insufficient to cover her necessities at present. Permanent alimony is indicated. Under the facts of this case, the Court determines that Winona Musselman’s present earnings should be used to reduce the former support figure of $1,500.00 per month, and, accordingly, the Court will reduce alimony payments to $795.90 per month ($1,500.00 minus 92.85% of $758.33). On appeal Dr. Musselman contends that the award of permanent alimony was in error as his former wife is no longer in necessitous circumstances! In support of his position Dr. Musselman argues that his former wife is gainfully employed, earning $758.33 per month; has “substantial assets”; and has the earning capacity sufficient to meet her basic needs. Mrs. Mus-selman contends that the trial court’s award of permanent alimony of $795.00 per month was inadequate, because she demonstrated monthly expenses of $2,000 per month. She further alleges that the trial judge erred in calculating the amount of the award as he merely reduced her former monthly payment of $1,500 per month by the amount of her current monthly earnings. Louisiana Civil Code Article 160 controls the award of alimony after divorce: Art. 160. When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant. In determining whether the claimant is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances. This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries. In this case Dr. Musselman seeks to eliminate alimony or in the alternative, to re duce the amount paid. Mrs. Musselman desires that the amount of alimony being paid by the defendant be maintained. In cases such as this, the party seeking alimony has the burden of proving necessitous circumstances or insufficient means for their maintenance. Vorisek v. Vorisek, 423 So.2d 758 (La.App., 4th Cir., 1982). “Means” includes income and capital. Vorisek v. Vorisek, supra. The wife’s earnings, as well as her earning capacity, are proper considerations in awarding alimony. Vorisek v. Vorisek, supra; See: Teasdel v. Teasdel, 454 So.2d 886, (La.App., 4th Cir., 1984). In this case the record reflects the following factors regarding the financial status of the parties: Mrs. Musselman has a bachelor’s degree and has worked towards a master’s in English. She stated that she was unable to complete these studies because of financial reasons. Plaintiff did not work during the twenty years of her marriage. Following the dissolution of the marriage, Mrs. Mus-selman made numerous attempts at securing employment, but she was unsuccessful. She finally was able to obtain work as a secretary with a local synagogue. She works 30 hours a week earning $758.33 gross pay and net income of $646.11 monthly. As a part time employee she receives no work benefits such as health insurance or pension membership. She testified that even after securing this position she applied, on at least three occasions, for full time employment but she was rejected. Mrs. Musselman testified that her home was fully paid for since she used funds derived from her community property settlement to purchase her current home. She stated that she paid $250 per month maintenance which figure she based on the upkeep of the community residence. She testified that she owned her automobile which was 11 years old. She did not use the vehicle daily to go to work because she was able to walk there. She testified that she spent $230 a month for gasoline and maintenance of the vehicle. Mrs. Musselman claims $300.00 per month for food, however she concedes that this figure includes an amount for pet food. She also stated that she spends $40.00 per month for cleaning supplies, $61 per month for house insurance, $55 per month for her telephone, which includes long distance calls, and $213 for natural gas. She concedes that the figure for natural gas was an estimate based on her prior residence. She did not have central heat. With regard to her personal expenses, plaintiff lists $75 per month clothing, $45 per month for dry cleaning and laundry, $80 per month for personal grooming and $126 medical insurance. She also includes $574 for miscellaneous expenses such as pet care, travel, gifts, magazines, etc. Dr. Robert Musselman is a professor of pediatric dentistry at L.S.U. Dental School. He earns a gross salary of $80,000 with a net income of $60,877.28. The combined gross salary of Dr. Musselman and his current wife is $106,229. Dr. Musselman testified that he has a monthly house note on his new residence of $940.00 per month. He has a monthly car note of $480.00 on his new Acura vehicle. In addition, he spends $190.00 per month for auto insurance for himself and his wife and $150.00 per month on the operation of his vehicle. He incurs food expenses for himself of $300.00 per month, $100.00 per month entertainment expense plus a home improvement payment of $334.00 per month. Our review of the record convinces us that the trial judge correctly concluded that plaintiff does not have sufficient means for her support and is entitled to permanent alimony. In arriving at this conclusion he correctly took into consideration the actual earnings of the plaintiff. Although earning capacity is a factor to be considered in awarding permanent alimony, in this case, it was not such a factor as would negate the award. That is, the plaintiff demonstrated that her specific and repeated attempts to secure a better paying job had been unsuccessful. Moreover, the trial judge apparently found that Mrs. Musselman’s ownership of a personal residence was not such “means” as would defeat alimony. We agree. In Vorisek v. Vorisek, supra at 763 we considered this issue: A wife will not be required to sell her home and deplete the proceeds of the sale in order to be entitled to alimony. Sonfield v. Deluca, 385 So.2d 232 (La., 1980); Loyacano v. Loyacano, supra [358 So.2d 304 (La., 1978)]; Super v. Super, supra [397 So.2d 1084 (La.App., 4th Cir., 1981)]. ****** That is, only when large sums are tied up in extravagant housing will the continued possession of the home be considered sufficient means to defeat alimony. Kean v. Kean, supra [388 So.2d] at 400 [(La.App., 1st Cir., 1980)]. In this case a personal residence of $75,-000 is not “extravagant housing”, the continued possession of which will negate an award of support. Although the trial court’s decision to award plaintiff permanent alimony was correct, its method of calculation was in error. The trial court awarded the sum of $795.00 per month, which was the difference between the prior stipulated alimony payment and the plaintiffs current earnings. This approach fails to take into consideration the essential factors ennumerat-ed in Civil Code Article 160 and it also ignores the evidence presented of the current needs and means of the parties. We have considered the evidence presented and we agree with the trial court that some of the plaintiffs claimed expenses are not “necessary” at that term applies to permanent alimony. Excluding these items from consideration and considering the remaining needs and means of the parties, we cannot say that an award of $795.00 per month in this case is clearly wrong. For these reasons the judgment of the trial court is affirmed at the cost of the defendant. AFFIRMED. F.I.C.A. taxes are 7.15%. The 92.85% figure is the difference.

GUIDRY, Judge. On October 29, 1984, plaintiffs, David Antis and Gerry Ames Antis (hereafter Antis), filed this suit seeking to compel removal of an encroachment allegedly constructed by defendants, J.D. Miller and Georgia Sonnier Miller (hereafter Miller) on the Antis property. Antis alleges that the building constructed by Miller extended 3.85 feet onto his property. Antis further alleged that the Miller building was constructed in violation of the zoning ordinance of the City of Crowley as well as the building restrictions established for the Country Club Subdivision wherein the Antis and Miller properties are located. Defendants filed an answer setting up several defenses. In response, defendants denied that their building encroached onto plaintiffs’ property. Further, defendants urged that the restrictive covenants for the entire subdivision had been abandoned as a result of a series of violations which destroyed the general scheme of the Country Club Subdivision or, alternatively, that the restriction controlling proximity of construction to property lines had been abandoned; plaintiffs are without right to enforce the zoning ordinance of the City of Crowley; and, in the event encroachment is found, defendants are entitled to a legal servitude on the Antis property pursuant to the provisions of La.C.C. art. 670. In a supplemental answer and reconventional demand, defendants asserted a possessory action to the 3.85 foot strip of land in dispute. The trial court, in its reasons for judgment, concluded that: 1. Miller’s construction encroached 3.85 feet over onto the Antis property; 2. Miller did not maintain such possession of the property involved (3.85 foot strip) sufficient to maintain a possessory action; 3. Antis was without right to complain of a violation of the city zoning ordinance or to enforce compliance therewith; 4. the restrictive covenants of the Country Club Subdivision were still viable; and, 5. Miller was not entitled to a legal servitude under La.C.C. art. 670 Servitude. Pursuant to these findings, the trial court rendered judgment ordering removal of the building constructed by Miller on the Antis property to a point 10 feet from the Antis-Miller property line. Defendants suspensively appealed urging error in all of the trial court’s findings except that regarding their lack of authority to enforce the City of Crowley zoning ordinance. Defendants also urge that the trial court manifestly erred in completely disregarding the testimony of Leslie Hill. FACTS Antis purchased Lots 31 and 32 of the Country Club Subdivision in May of 1964. No improvements were ever constructed on these lots. Miller purchased Lot 30 of the Country Club Subdivision, with the home situated thereon, in May of 1977. The plat of the Country Club Subdivision which was introduced in evidence is attached as Appendix A. The record reflects that, prior to the Miller purchase of Lot 30, his ancestor in title mowed and otherwise maintained a yard area south of his residence to a point marked by two pine trees, one located near Hoyt Avenue in the vicinity of the southeast corner of Lot 30 and the other located at the rear of the property in the vicinity of the southwest corner of Lot 30. The record does not reflect the exact location of these trees, but it can reasonably be determined by reference to a plat of survey of Lots 31 and 32 (attached as Appendix B) photographs introduced in evidence, and testimony of the witnesses that the trees are located on Lot 31, approximately 17 feet south of its north line. According to Miller, when he purchased Lot 30, there existed three shrubs in line with the pine trees and the lawn had been maintained up to that point. Miller testified that he planted four additional shrubs in a straight line between the two pine trees. These shrubs existed for approximately two and one-half years until they were removed in order to store supplies needed for the remodeling of his home. Two shrubs on each end still remain. According to Miller’s testimony, from the year 1977 through the year 1984, he main tained the lawn and mowed the grass on the south side of his residence up to the pine trees. He also used this strip of land to store pipe and park an automobile he purchased in 1982. The record reflects that the pipes were placed at the rear of the property in line with the pine trees and remained there for approximately two to three years. Additionally, during construction of the Miller addition, roofing materials were stored in the approximate same location. In June of 1983, Miller began renovation of his residence, including the construction of a garage addition. According to his testimony, Miller always believed that he owned the property upon which the garage was constructed. He stated that when the garage was approximately 80% complete, he began to suspect that there might be an encroachment onto Lot 31 and, at that point, immediately notified Antis. According to Miller, Antis was notified in May of 1984. At the time Miller notified Antis of the possible dispute, the renovations, including construction of the garage, were 80% complete. The parties virtually concede but, in any event, the record reflects that the encroachment of the garage extension to the Miller home is 3.85 feet across the north property line of Lot 31. Also, there is no question but that the building of the garage extension to the Miller home violates building restriction number 5 of the Country Club Subdivision. Restriction number 5 requires buildings to be built 10 feet from the side or rear lot line. THE POSSESSORY ACTION ISSUE In rejecting defendants’ reconven-tional demand to be maintained in possession of the disputed strip, the trial court concluded that the possession exercised by Miller over the disputed strip was not of the quality required for maintenance of a possessory action. We find no error in this conclusion. In Harper v. Willis, 383 So.2d 1299 (La.App. 3rd Cir.1980), writ denied, 390 So.2d 202 (La.1980), we discussed the possession necessary for maintenance of a possessory action stating: "... LSA-C.C. art. 3436 requires two distinct elements for a person to acquire possession: (1) the intention of possessing as owner and (2) the corporeal possession of the thing. Our jurisprudence usually states that the term ‘corporeal possession’ means the actual, physical, open, public, unequivocal, continuous, and uninterrupted possession of property with the intent of possessing it as owner. Gerrold v. Barnhart, 128 La. 1099, 55 So. 688 (1911); Wm. T Burton Industries, Inc. v. McDonald, supra [346 So. 2d 1333 (La.App.)], Succession of Kemp v. Robertson, 316 So.2d 919 (La.App. 1st Cir.1975), writ denied, 320 So.2d 906. It is well established that the ‘corporeal possession’ required to bring a possesso-ry action is identical to that required for acquisitive prescription of thirty years. LSA-C.C. articles 3499-3505; Hill v. Richey, et al., 221 La. 402, 59 So.2d 434 (La.1952); Johnson v. Merritt, 131 So.2d 562 (La.App. 2nd Cir.1961); Case v. Jeanerette Lumber & Shingle Company, Inc., 79 So.2d 650 (La.App. 1st Cir.1955); Broussard v. Motty, 174 So.2d 246 (La.App.3rd Cir.1965); Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975); Norton v. Addie, 337 So.2d 432 (La.1976); Wagley v. Cross, 347 So.2d 859 (La.App. 3rd Cir.1977). It is clear that the intent to possess as owner has to do with the subjective intent of one who professes to possess and does not mean that the possessor must pretend to have valid title rights. The possessor may actually have title, but in the possessory action that factor is significant only in determining intent. The intent may exist without title to the knowledge of the possessor, for as shown above, even our codes permit a person in bad faith or a usurper to maintain the possessory action. LSA-C.C. arts. 3450, 3452, and 3454 and LSA-C. C.P. art. 3660. In as much as the corporeal possession required as a predicate to a possessory action is the same as that required for acquisitive prescription of 30 years, the corporeal possession must be open and notorious and adverse or hostile to the true owner and everyone else.” In our view, the acts of possession relied upon by Miller, i.e., the mowing of grass on the disputed strip and the occasional storing of building material thereon, standing alone, would not be of the quality required for acquisition of property under the prescription of 30 years and, therefore, will not suffice to support a possessory action. The record does not establish that Miller mowed the grass or stored materials on the disputed strip with the intent to acquire its ownership. Further, the record does not support a conclusion that the acts relied upon by Miller were notorious and unequivocal acts of possession. Following Miller’s purchase of Lot 30, he merely continued to mow the lawn up to the two pine trees, as his predecessor had done. His obvious intent, like that of his predecessor, was to maintain a neat appearance of his lot which was adjacent to the vacant, unimproved property belonging to Antis. The record reflects nothing which would support a finding of intent on the part of Miller to possess this strip as owner adverse to Antis. Further, the acts of possession relied upon by Miller are equivocal and lack the qualities of hostility and notoriousness. Antis testified that, although Miller never sought permission to store pipe and building materials on the disputed strip, he allowed Miller to do so as a gesture of good will. Further, Antis did not object to Miller mowing the strip in question, although he did hire someone to mow Lot 31 and instructed him to mow the grass from telephone pole to telephone pole, physical objects which he believed were at the corners of his property. In Wagley v. Cross, 347 So.2d 859 (La.App. 3rd Cir.1977), we recognized that the mowing of grass, over a long period of time, standing alone, was not sufficient to acquire property by acquisitive prescription, concluding that more must be shown, including the fact that it was done as owner by one claiming ownership. In Wagley, supra, more was shown. In the instant case, considering the totality of circumstances reflected by the record, plaintiff in reconvention has failed to establish his right to be maintained in possession of the disputed strip. The trial court did not err in this conclusion. SUBDIVISION RESTRICTIONS Defendants next contend that the building restrictions for the entire subdivision have been abandoned as a result of a series of violations which destroyed the general scheme of the original development. Alternatively, defendants contend that such violations reflect abandonment of building restriction number 5. Specifically, Miller argues that the construction and continued existence for a period in excess of 20 years of a housing project on Lots 53 through 75 of the subdivision has subverted the original plan or scheme of development which the restrictions were intended to implement. The building restrictions governing the use of the property and the improvements to be constructed on lots in the Country Club Subdivision, which Miller contends were and continue to be violated by the contruction and continued maintenance of a housing project, read in pertinent part as follows: “1. The use of said property is restricted for residential purposes, and no structures shall be erected, altered, placed or permitted on any lot other than a one or two-story detached single family dwelling, automobile garages and other appropriate outbuildings. The term ‘residential purposes’ as used herein shall be held to exclude hospitals, duplex houses, apartment houses and churches. 2. No building shall be used for commercial purposes, and no business shall be operated within the said subdivision. 3. No residence shall be constructed on any of said lots with a total living area of less than 1,200 square feet, exclusive of carports, garages, etc. 4. Not more than one residence shall be constructed on any of said lots or portion thereof. 5. No building shall be located on said lots nearer than 25 feet to the front lot line, or nearer than 10 feet to the side or rear lot line. Comer lots shall have two 25 foot setbacks. 12. No commercial building of any type, public utility, or plant, shall be located in said subdivision, and no noxious or offensive trade or activity shall be carried on or upon any of the property in said subdivision, nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.” Defendant, J.D. Miller, who was employed as the executive director of the housing projects in question for 21V2 years, testified regarding the composition and arrangement of the housing project. He stated that all units in the housing project are multi-family dwellings and all are duplex houses. There is an office and maintenance building associated with the project which is located in the subdivision and rental payments are collected at this office. Bachelor (efficiency) apartments comprise more than one-half of the housing project units and these apartments each contain a total living area less than 1,200 square feet. Miller testified that some of the buildings in the housing project were built across lot lines and some lots contained two buildings per lot. Although Miller did not measure the distance between buildings and side lot lines, he testified that the buildings were all constructed in close proximity one to the other. The trial court apparently determined that the construction and continued maintenance of this housing project on Lots 53 through 75 of the subdivision did not reflect an intent on the part of the property owners in the subdivision to subvert the original plan of development. In reaching this conclusion, the trial court stated in its written reasons for judgment: “The Defendants further allege that there was a housing authority with fifty-three to seventy-five (53-75) units in the subdivision, which violates the building restrictions. The testimony clearly established that the housing unit was in another area clearly separate from the residential area involved in this litigation.” We disagree and ultimately determine that the restrictive covenants applicable to the Country Club Subdivision have been abandoned. This court stated in Gwatney v. Miller, 371 So.2d 1355, 1361-1362 (La.App. 3rd Cir.1979): “It is not every violation of a building restriction which will constitute its abandonment. Insubstantial, technical or infrequent violations which do not manifest an intent to subvert the original plan or scheme of development will not constitute an abandonment of the restrictions. However, when the property owners can be regarded as having abandoned the plan of development which the restrictions were intended to implement by virtue of their acquiescence to frequent and numerous violations thereof, such restrictions are considered abandoned. Edwards v. Wiseman, 198 La. 382, 3 So.2d 661 (1941).” Lots 53 through 75 lie within the physical boundaries of the Country Club Subdivision and as such are made subject to the building restrictions adopted when the subdivision was created. Lots 53 through 75 are separated from the balance of the property situated within the physical boundaries of the subdivision only by an intervening street “Buck Sweeney Drive”. (See Appendix A) We have not been cited to any authority and know of none which would support the trial court’s conclusion that substantial and frequent violations of building restrictions in one area of a subdivision are irrelevant to a claim of abandonment involving another area of the same subdivision, particularly where the areas are in close proximity and separated only by an intervening street. The record reflects that the construction and continued maintenance of the housing project on lots 53 through 75 of the Country Club Subdivision is in substantial violation of several of the restrictive covenants applicable to that subdivision. Further, such violations subsist on 23 lots, which collectively comprise almost 33% of the to tal land area situated within the subdivision’s limits. Under such circumstances, we conclude that the original plan or scheme of development which the restrictive covenants of the Country Club Subdivision were intended to implement has been abandoned and the trial court clearly erred in holding to the contrary. This conclusion renders Miller’s complaint of error in the trial court’s disallowance of Hill’s testimony moot. ARTICLE 670 SERVITUDE Defendants contend they are entitled to a predial servitude over the 3.85 foot strip pursuant to the provisions of La.C.C. art. 670 and the trial court erred in failing to accord them that right. La. Civil Code Article 670 provides as follows: “When a landowner constructs in good faith a building that encroaches on an adjacent estate and the owner of that estate does not complain within a reasonable time after he knew or should have known of the encroachment, or in any event complains only after the construction is substantially completed the court may allow the building to remain. The owner of the building acquires a predial servitude on the land occupied by the building upon payment of compensation for the value of the servitude taken and for any other damage that the neighbor has suffered....” La.C.C. art. 670 was enacted by Act 514 of 1977, effective January 1, 1978. In adopting this new article, the legislature’s obvious purpose was to ameliorate the often harsh results reached under prior law when a landowner, in good faith, constructed a building that encroached on an adjacent estate. The article provides that when a landowner in good faith constructs a building that encroaches on a neighboring estate, and the owner of that estate does not complain within a reasonable time after he knew or should have known of the encroachment, or complains only after the structure is substantially completed, the court may allow the building to remain, awarding a predial servitude to the good faith encroacher upon the latter’s paying compensation and any damages suffered by the neighbor. In its written reasons for judgment, the trial court did not mention or discuss defendants’ demand for a La.C.C. art. 670 servitude but impliedly rejected same when it ordered defendants’ encroachments removed. Thus, we do not know and have no means of knowing why the trial court rejected this demand. Our careful examination of the record in this case prompts the conclusion that the trial court clearly erred when it rejected the Miller demand for a predial servitude. The record reflects that Miller’s encroachment on the Antis property was in good faith. Miller and his ancestor in title before him had mowed and otherwise maintained the strip in controversy and an area south thereof to the pine trees for many years without complaint from Antis. Miller testified that he always considered that his property extended to the pine trees. Although we previously determined that the possession exercised by Miller was not of the quality required for maintenance of a possessory action, we do not consider this conclusion at odds with a determination of Miller’s good faith under Article 670. Although prior to construction, Miller made no effort to locate the south line of his property by survey, we do not believe that this circumstance makes him a bad faith encroacher. If a prior survey before construction were a requisite for good faith, there would be no need for Article 670. Presumably, if all constructions were preceded by an accurate survey, there would never be an encroachment. In sum, the evidence in the record clearly supports the conclusion that Miller is a good faith en-croacher. We reached a like result under somewhat similar circumstances in Bushnell v. Artis, 445 So.2d 152 (La.App. 3rd Cir.1984). Miller likewise satisfies the other element required by La.C.C. art. 670, i.e., failure of Antis to complain within a reasonable time after he knew or should have known of the encroachment or, in any event, after the structure was substantially completed. The record reflects that Antis never did complain. Rather, the possibility of an encroachment was raised by Miller with Antis approximately one year after construction had begun. In this connection, Miller testified as follows: “Q. I understand that you were the one that first made Mr. Antis aware of the fact that there may be some question as to ownership of that piece, is that correct? A. Yes sir, on the very same day that I determined that perhaps there was a problem there, I immediately called his place to speak with him ...” Likewise, the record establishes that when the encroachment issue was first raised the addition to the Miller home was approximately 80% complete. The language of C.C. art. 670 makes an award of servitude discretionary with the trial court once the elements required have been satisfied. Although this be so, we believe that a refusal of servitude under the circumstances present in this case would constitute a clear abuse of discretion. Miller has satisfied the elements required by Article 670. If Miller is required to demolish the encroaching structure, he would not only lose that portion of the structure which encroaches but demolition would compromise his entire renovation project entailing a considerable financial loss. This is the exact type of harsh result that C.C. art. 670 was intended to ameliorate. On the other hand, Antis owns adjoining vacant lots, each 100' x 120', which are no longer subject to the restrictive covenants of the Country Club Subdivision. Clearly, a balancing of the equities dictates that Miller be awarded a predial servitude pursuant to the provisions of La. C.C. art. 670. We will amend the judgment of the trial court to award Miller a predial servitude of sufficient width so as to accomodate the encroaching structure (see Bushnell, supra, at page 155) upon payment by Miller of compensation for the value of the servitude and for any other damages that Antis may suffer. We are unable to determine from the record in this case the extent of the servitude which should be awarded Miller or the value of the servitude and the damages, if any, to which Antis is entitled. Accordingly, we will remand this matter to the trial court for such purpose, with leave being allowed both parties to introduce on remand such additional evidence as they may deem necessary. Accordingly, for the foregoing reasons, it is ordered, adjudged and decreed that there be judgment recognizing J.D. Miller and Georgia Sonnier Miller to be entitled to a predial servitude on such portion of Lot 31 of the Country Club Subdivision (See Appendix B) sufficient to accomodate their good faith encroachment onto Lot 31, upon payment by J.D. Miller and Georgia Sonnier Miller to David and Gerry Ames Antis of a sum in money equivalent to the value of the predial servitude herein awarded and any and all damages which Antis will sustain, all pursuant to the provisions of La. C.C. art. 670. Further, this matter is remanded to the trial court for further proceedings and, in particular, for determination of the extent of the predial servitude to be awarded; the value of the servitude; and, any and all damages to which David and Gerry Ames Antis are entitled, with leave being granted to all parties to introduce such additional evidence for resolution of these issues as they deem expedient and necessary. REVERSED IN PART AND REMANDED. APPENDIX A APPENDIX B . On appeal neither party asserts error in the trial court’s conclusion that plaintiff was without authority to seek enforcement of the zoning ordinance of the City of Crowley and the issue is not briefed. Therefore, we express no opinion in regard thereto. . Miller explained that the new enclosed garage which encroaches on the Antis property is only a small but integral part of the entire renovation project. Demolition of the garage area would require an invasion of and changes in the house structure, including the roof and living areas both upstairs and downstairs.

In re Cabanas, Alex I.J.; applying for writ of certiorari and/or review, supervisory and/or remedial; Parish of St. Tammany, 22nd Judicial District Court, Div. “F,” No. 171080; to the Court of Appeal, First Circuit, No. KW88 0685. Denied. DIXON, C.J., and CALOGERO and DENNIS, JJ., would grant the writ.

In re Harris, Harmon; applying for supervisory and/or remedial writs; Parish of Richland, 5th Judicial District Court, Div. “C”, No. 47399; to the Court of Appeal, Second Circuit, No. 20024-KW. Denied. CALOGERO, J., would grant.

GOTHARD, Justice. The defendant, Kenneth M. Oubre, pled guilty in the 23rd Judicial District Court to a charge of three counts of indecent behavior with a juvenile in violation of LSA-R.S. 14:81. He appeals his sentence as excessive. On July 28,1986 Oubre was arrested on charges of oral sexual battery, carnal knowledge of a juvenile, and molestation of a juvenile. After an arraignment set for August 18 was continued, on December 9, 1986 a bill of information was filed, charging the defendant with three counts of indecent behavior (masturbating in the presence of a juvenile) with three separate juveniles. On that day he was arraigned and pled guilty as charged pursuant to a plea bargain. The court ordered a pre-sentence investigation. On June 29, 1987 the court heard the defendant’s motion to traverse the pre-sentence report and ordered that the report be supplemented. On August 17, 1987 the defendant was sentenced to serve two years at hard labor and to pay a fine of $500.00 and court costs for each of the three counts. The sentences were to run consecutively with the stipulation that a default in payment of the fines would result in an additional six months’ imprisonment on each count, also concurrent. Assignment of Error The trial court erred by imposing an excessive sentence. Facts: The defendant was at the time of his arrest unmarried, thirty-two years old, a deputy sheriff and a Boy Scout leader with no previous criminal record. In 1984 he had received the Louisiana Jaycees “law officer of the year” award. In July, 1986 a twelve year old boy reported to his parents that from about January, 1986 until June the defendant performed oral sex on him and persuaded the boy to perform oral sex upon the defendant. The incidents took place at least three times a week when the boy and his brother visited the defendant’s trailer to lift weights. He reported that at Boy Scout camp in the week of June 15-21, the defendant took him to a wooded area or the bathroom each night for oral sex. He instructed the victim not to tell his parents. Upon hearing their son’s account, the parents called the police and the defendant was arrested. The defendant's involvement with two other boys was discovered in further investigation and the defendant was then charged by bill of information with three counts of indecent behavior with a juvenile. Assignment of Error Discussion The defendant’s position is that his sentence is excessive in that it orders incarceration when the record supported a suspended sentence. He bases his argument on the pre-sentence investigation and the plea bargain. The law regarding the safeguards against overly severe punishment in violation of a defendant’s constitutional rights were summarized by this court in State v. Piazza, 496 So.2d 1229, 1230 (La.App. 5th Cir.1986), a case dealing with indecent behavior with juveniles, as follows: Article 1, Section 20 of the Louisiana Constitution of 1974 states in pertinent part that “no law shall subject any person ... to cruel, excessive, or unusual punishment ...” A sentence is excessive if it is grossly out of proportion to the severity of the crime or it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Howard, 414 So.2d 1210 (La.1982); State v. Smith, 407 So.2d 652 (La.1981); State v. Allen, 451 So.2d 618 (La.App. 5th Cir.1984). The penal sanction for each violation of La.R.S. 14:81 is a term of imprisonment not to exceed five years with or without hard labor and/or a fine of not more than five thousand dollars. Accordingly, the term of imprisonment imposed upon the defendant is within the statutory range. Nevertheless, in State v. Sepulvado, 359 So.2d 137, (La.1978), same case, 367 So.2d 762, 767 (La.1979), the court expressly stated that “the imposition of a sentence although within the statutory limits may violate a defendant’s constitutional right against excessive punishment that is enforceable ... on appellate review of his conviction.” Thus, a sentence may be reviewed for excessiveness though it is within the prescribed statutory range. State v. Nealy, 450 So.2d 634 (La.1984); ... [Other citations omitted.] La.C.Cr.P. art. 894.1 sets out guidelines to be considered by the court when imposing sentence, so that the sentence will be appropriate for the particular defendant and the particular circumstances of the case. Once the court has complied with article 894.1, the sentence will not be set aside as excessive unless there is a manifest abuse of discretion and the penalty is grossly out of proportion to the severity of the crime and a needless infliction of pain and suffering. State v. Willis, 420 So.2d 962 (La.1982). In sentencing Oubre, the trial judge handed down Reasons for Sentence, seven pages in length, articulating his evaluation of the defendant and the offenses in terms of the statutory guidelines and indicating that he had carefully weighed all the evidence before him. While acknowledging the mitigating factors in Oubre’s background and the recommendation of leniency from certain members of the community, he stated his primary reasons for deciding on incarceration as follows: The Court believes that there is an undue risk that during the period of a suspended sentence or probation this defendant would commit another crime; that he is in need of correctional treatment or a custodial environment which can be provided most effectively by his commitment to an institution and that any lesser sentence than the one to be imposed herein would deprecate the very serious nature of these offenses. Aside from the very serious nature of the crimes perpetrated by this defendant upon these unsuspecting children, is the fact that, the defendant exploited his position as a member of the St. James Parish Sheriffs Law Enforcement Community and as a Boy Scout Troup Leader to entice these young men into sexual activities. Obviously, the scarring effect of the defendant’s actions upon the victims and upon this community are of monumental proportions. It is quite possible that the lives of some of these victims may never be the same because of the defendant’s actions. In addition to the seriousness of the offense, one of the more disturbing aspects of this case is that this defendant is classified as a pedophile.... The defendant complains that the court used only the negative information instead of the positive. In Dr. Edward H. Schwery’s letter to the probation investigator, included in the pre-sentence report, Schwery stated that he believed Oubre to be a fixated pedophile, with an ingrained pattern of abnormal sexual attraction to children. Such persons, he said, are rarely cured, although through therapy some may be able to control their behavior. It was his opinion that Oubre had probably a longer history of deviant behavior than he had admitted to and that if Oubre made no further disclosures he would be pessimistic about Oubre’s treatability and the likelihood of future recurrences. Dr. Schwery made no definitive recommendations as to sentencing. As to victim impact, Dr. Schwery pointed out that he had treated children who had been abused by persons who were professionals (priests, teachers, etc.), and found that the long-term impact upon those children was worse than on those whose abusers were not in positions of authority. The report of Dr. Stephen Southern, who holds a doctorate in education and who specializes in counseling on sexual problems, was also part of the pre-sentence report and his conclusions were diametri cally opposed to Dr. Schwery’s. He had been seeing Oubre every other week after Oubre’s initial inpatient treatment at Jo Ellen Smith Hospital and had revised his initial diagnosis of a borderline personality disorder and fixated pedophilia. He had administered a test that indicated Oubre is now taking an interest in women and stated that he felt remorse for the effects of his behavior upon the boys. Dr. Southern believed that the victims of the three offenses for which Oubre was charged were his only victims and that such incidents were unlikely to happen again. Dr. Southern felt that Oubre was motivated and able to benefit from therapy. If he was imprisoned and without treatment his problems were likely to intensify. The trial court may accept or reject an opinion expressed by a medical expert. Kramer v. Johns-Manville Sales Corp., 459 So.2d 642 (La.App. 5th Cir.1984) The defendant argues that only the victims and their families of the three victims suggested incarceration, and that all others who filed documents in the court or commented to the court recommended probation and therapy. He stated in brief that, “The District Attorney’s Office agreed it would not recommend incarceration”. The state’s brief indicates that the District Attorney’s Office agreed not to make any recommendation regarding sentencing. He stated further that the probation agent who prepared the pre-sentence report, had told Oubre and his attorney in a meeting that he would recommend a suspended sentence; however, the state’s brief denies the agent’s having ever made such a statement to the defendant or the court. Instead, the agent recommended a three-year sentence with the Department of Corrections in the first report and made no recommendations on sentencing in the second report, as he was no longer attached to the Department. Contrary to the judge’s statment in his reason for sentence that the defendant’s conduct caused and threatened serious harm to the victims as well as the community as a whole, the defendant asserts that there was never a threat of physical harm nor any actual physical harm. The damage was clearly not physical and there is no indication that the court intended such an interpretation. The harm to the victims was psychological, as described by Dr. William Janzen, a psychologist who was treating M., the twelve-year old boy who reported the abuse, and his fourteen-year-old brother, L., who had been abused by the defendant in 1985 and early 1986. The parents of the victims reported feeling betrayed, and it is likely that other members of the community felt that for the offenses to have been committed by a sheriff's deputy constituted an abuse of public trust in the law enforcement agency. See State v. Moore, 419 So.2d 963, 968 (La.1982). Our review of the jurisprudence indicates that other courts have upheld sentences of incarceration for periods exceeding two years, where a defendant pled guilty to indecent behavior with a juvenile. See State v. Coleman, 490 So.2d 705 (La.App. 2 Cir.1986), writ denied, 496 So.2d 1037 (La.1986); State v. Sanderson, 488 So.2d 1120 (La.App. 2 Cir.1986), writ denied, 494 So.2d 326 (1986); State v. Domangue, 476 So.2d 986 (La.App. 1 Cir.1985). We note also that the sentences ran consecutively in the cases of State v. Piazza, supra; State v. Domangue, supra; State v. Coleman, supra. The defendant argues also that the plea bargain should have called for a suspended sentence. While the defendant was arrested on 87 counts of oral sexual battery, carnal knowledge of a juvenile, and molestation of a juvenile, arraignment on those charges set for September 15, 1986 was continued on the motion of the district attorney. Thereafter, apparently a plea bargain was agreed upon, and a bill of information was filed charging the defendant only with three counts of indecent behavior with a juvenile and on the same day the defendant was arraigned and pled guilty. In the examination the court asked specific questions as to the defendant’s understanding of his sentencing exposure, as follows: The Court: Do you think you understand that crime, the definition of it, the elements of it? A. Yes. The Court: It goes on to say that, “Whoever commits the crime of indecent behavior with juveniles shall be fined not more than $5,000 or imprisoned with or without hard labor for not more than seven years or both. So, that you have plead (sic) guilty to three counts of that crime, which means that your possible exposure could be fines of up to $15,000 or imprisonment of up to 21 years or both. Do you understand that? A. Yes. The Court: And I understand further that there has been no assurances to you as to any sentences. The Court will receive your plea today and will defer sentence and order a pre-sen-tence investigation report and after the Court has received this report and considered all of the information in the report and any other relevant informtion which you may want to present to the Court, then your sentencing will be scheduled and you will, at that time, be sentenced. Do you understand that? A. Yes sir. The Court: Now, you understand, again, that there are no promises by the Court to you that there will be any sentence other than what you may receive from the Court and that that could be anything from no time in jail up to 21 years including a possible fine of $15,000. Do you understand that? A. Yes. As the defendant was represented by counsel and replied that he fully understood his exposure, we see no applicability of State v. Graham, 513 So.2d 419 (La.App. 2nd Cir.1987), relied upon in appellant’s supplemental brief, and find no merit in his argument. In summary, we find no error in the trial court’s sentence and affirm. SENTENCE AFFIRMED. . The defendant failed to file any formal assignments of error, but his counsel argued exces-siveness of sentence in his brief. As the applicable statute, La.C.Cr.P. art. 844(C) does not authorize the reviewing court to disregard an assignment presented in brief only, we consider the defendant’s argument as if he had filed a formal assignment. . Art. 894.1. Sentence guidelines; generally A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if: (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime; (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or (3) A lesser sentence will deprecate the seriousness of the defendant’s crime. B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation: (1)The defendant’s criminal conduct neither caused nor threatened serious harm. (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm. (3) The defendant acted under strong provocation. (4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense. (5) The victim of the defendant’s criminal conduct induced or facilitated its commission. (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained. (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime. (8) The defendant’s criminal conduct was the result of circumstances unlikely to recur. (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime. (10) The defendant is particularly likely to respond affirmatively to probationary treatment. (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents. (12) The defendant’s voluntary participation in a pre-trial drug testing program. C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence. D. When a defendant has been convicted of a misdemeanor and the court has imposed a sentence of imprisonment, the sentencing court may order the defendant to report to the sheriff for participation in a court-approved workday release program during the term of imprisonment as provided by law. Added by Acts 1977, No. 635, § 1. Amended by Acts 1986, No. 704, § 1; Acts 1987, No. 500, § 1.

DOUCET, Judge. Defendant, Chester Bennett Sr., was charged by bill of information with driving while intoxicated, third offense, in violation of La.R.S. 14:98. Following a guilty verdict rendered by a jury of six, defendant was sentenced as a habitual offender to serve 10 years at hard labor. Defendant’s appeal from his conviction and his appeal from his sentencing as a habitual offender have been consolidated. The salient facts of this case will be set forth in addressing defendant’s first assignment of error. ASSIGNMENT OF ERROR NO. 1: Defendant contends there is insufficient evidence in the record to sustain his conviction of driving while intoxicated, third offense. The standard for reviewing sufficiency questions was set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and is "... whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” See also State v. Honeycutt, 438 So.2d 1303 (La.App. 3rd Cir.1983), writ denied, 443 So.2d 585 (La.1983). La.R.S. art. 14:98(A) provides: “The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when: # * * # # * (2) The operator’s blood alcohol concentration is 0.10 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood; This court in City of Alexandria v. Webster, 490 So.2d 747 (La.App. 3rd Cir.1986) stated, “To convict an accused of driving while intoxicated, the prosecution must prove that: (1) defendant was operating a vehicle or other conveyance; and (2) defendant was under the influence of alcoholic beverages or some type of drug.” On September 13, 1986, Officer Brous-sard, a patrolman with the Welsh Police Department, was on patrol when he observed defendant operating a vehicle which was weaving and swerving about the road. Officer Broussard first observed the vehicle being operated by defendant on South Adams Street and he followed it as it turned left onto East Highway 90, or East Russell Street. Prior to stopping the vehicle driven by defendant, Officer Brous-sard observed it cross the center line, cross the right-hand side line and finally almost hit a bridge. When Officer Broussard stopped the vehicle, defendant exited from the driver’s side of the vehicle. A Uniform DWI Arrest Report was prepared by Officer Broussard based on responses he received from defendant. Officer Broussard questioned defendant as to whether he was operating the vehicle and based on defendant’s affirmative answer the DWI arrest report reflects that defendant was operating the vehicle. Officer Du-gas of the Welsh City Police accompanied Officer Broussard on patrol on September 13, 1986, and testified he observed defendant operating the vehicle. The second element of the crime is being under the influence of alcohol or drugs at the time of operating the vehicle. “... intoxication, with its attendant behavioral manifestations, is an observable condition about which a witness may testify.” City of Alexandria v. Webster, supra. Upon Officer Broussard’s request, defendant exited the vehicle and made his way to the back of his vehicle where the officer was standing. Defendant staggered as he attempted to walk and held onto the side of his car for assistance in walking. As defendant approached the officers, they detected a strong odor of alcohol on defendant’s breath. While talking with Officer Broussard, defendant had difficulty with maintaining his balance. Officers Brous-sard and Dugas both observed that defendant’s speech was slurred and that he was having difficulty speaking. Defendant admitted to having consumed three beers at Little Alec’s. Because Officer Broussard’s observations regarding defendant led him to believe defendant was intoxicated, the officer required defendant to perform the finger to nose test. This test requires a person to stand with feet together, arms outstretched, head back, eyes closed and touch his nose with the index finger on each hand. When performing the test with both his right and left hands, defendant missed his nose and hit his chin, therefore, he is considered to have failed that sobriety test. A second field sobriety test is referred to as the coin test and it requires the person to lift his left leg up and pick up a coin from the ground with his right hand. Although Officer Broussard requested defendant perform the coin test, the defendant did not perform the test and admitted he was unable to perform that test. Officer Michael Conner was called to testify regarding the results of defendant’s breath intoxilizer test which he administered following defendant’s arrest. According to the test, defendant’s blood alcohol concentration was .30 percent which is well above the .10 percent mark of La.R.S. 14:98. The above testimony indicates any rational trier of fact could have found defendant guilty of driving while intoxicated. There are several cases in Louisiana jurisprudence with similar facts and the convictions in these cases were affirmed despite contentions of insufficient evidence. The defendant in State v. Landry, 463 So.2d 761 (La.App. 5th Cir.1985); writ denied, 464 So.2d 1373 (La.1985), refused to submit to a field sobriety test, however, the officer observed that defendant was staggering, leaning on his car for support, having difficulty speaking and smelled of alcohol. Although defendant refused to submit to a field sobriety test, the court sustained the conviction because the officer’s observations were sufficient to support the driving while intoxicated conviction. The defendant in State v. Legnon, 464 So.2d 910 (La.App. 4th Cir.1985), did agree to the administering of two field sobriety tests and failed both tests as he was unable to touch his nose with his index finger and had difficulty retrieving keys from the ground. Defendant’s failure of the two field sobriety tests coupled with the officer’s observations regarding "... defendant’s slurred speech, wavering stance, and the distinct odor of alcohol on his breath provided evidence by which any rational trier of fact could have found this defendant guilty beyond a reasonable doubt of the crime of driving while intoxicated.” State v. Legnon, supra. The police officer’s testimony in State v. Sennette, 462 So.2d 675 (La.App. 4th Cir.1984), regarding the smell of alcohol on defendant’s breath, the slurring of defendant’s speech, defendant’s inability to maintain his balance, and defendant’s fumbling and stumbling during field sobriety tests was sufficient to support the driving while intoxicated conviction. The second circuit affirmed the defendant’s conviction in State v. Walker, 451 So.2d 679 (La.App. 2nd Cir.1984), writ denied, 456 So.2d 1016 (La.1984), based on a police officer’s testimony that defendant’s breath smelled of alcohol, defendant was swaying and unsteady and the fact that defendant had “... difficulty balancing himself, touching his nose, and walking heel to toe ... ” during a field sobriety test. The above discussed cases support the conclusion that there is sufficient evidence to support defendant’s conviction of driving while intoxicated, third offense. Therefore, this assignment of error lacks merit. ASSIGNMENT OF ERROR NO. 2 By this assignment of error defendant contends the sentence imposed is excessive. In this area of the law there are several well established principles. In State v. King, 471 So.2d 1181 (La.App. 3rd Cir.1985), this court stated, “For a sentence to be excessive, the penalty must be so disproportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice.” In reviewing excessive sentence claims, an appellate court must be mindful of the fact that wide discretion is granted to trial judges in the imposition of sentences within statutory limits and a sentence will not be set aside as excessive absent a manifest abuse of the discretion. State v. Meshell, 473 So.2d 935 (La.App. 3rd Cir.1985). La.C.Cr.P. art. 894.1 requires the trial judge to state on the record his reasons for the sentence and those reasons aid the appellate court when reviewing an excessive sentence claim. State v. Bourgeois, 406 So.2d 550 (La.1981). The final principle requiring mention is that “... maximum sentences are appropriate only in cases involving the most serious violation of the relevant statute and the worse type of offender.” State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983). In addition to being convicted on the driving while intoxicated third offense charge, defendant was found guilty as an habitual offender. According to La.R.S. 15:529.1(A)(1) and La.R.S. 14:98, defendant faced a maximum sentence of ten years, with or without hard labor. After detailing his reasons, the trial judge sentenced defendant to serve ten years at hard labor. For the reasons discussed below, it cannot be said the trial judge in the instant case manifestly abused his discretion nor is defendant’s penalty “... so disproportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice.” State v. King, supra. While the imposition of a prison sentence may cause defendant’s wife and minor child residing in the household to suffer a hardship, there are numerous factors militating towards imprisonment. The first factor weighing toward imprisonment is that defendant’s conduct did threaten serious harm. Fortunately, no one was injured as a result of defendant’s operation of the vehicle while he was in an intoxicated state, however, the possibility of injury was definitely present. Another factor weighing in favor of imprisonment is that defendant should have contemplated that his conduct could have resulted in serious harm to others. As the trial judge properly noted, there is an undue risk that defendant will commit another crime as this is the sixth time since 1955 that defendant has been arrested for driving while intoxicated. Last but not least, defendant's criminal record supports the imposition of not just imprisonment but the imposition of the maximum term allowed by law. The pre-sentence investigation report details defendant’s criminal record dating back to 1955. Since 1955 defendant has been charged with a variety of crimes including several DWI’s, vagrancy, simple burglary, theft, criminal mischief, murder reduced to manslaughter, and driving under revocation. The record clearly supports the imposition of the maximum sentence of imprisonment provided by La.R.S. 14:98(D) — five years at hard labor. However, for the reasons later discussed in addressing defendant’s assignment of error regarding his sentencing as a habitual offender, we will vacate the sentence as a whole and remand this case to the trial court for re-sentencing. ASSIGNMENT OF ERROR NO. 3: Assignment of Error No. 3 was not briefed, therefore, it is considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982); State v. Johnson, 438 So.2d 1295 (La.App. 3rd Cir.1983). ASSIGNMENT OF ERROR NO. 4: Only one issue under Assignment of Error No. 4 was briefed, therefore, the remaining two issues are considered abandoned. State v. Dewey, supra; State v. Johnson, supra. In the issue briefed defendant contends the trial judge erred in allowing the introduction of the results of the breath intoxilizer test as the state failed to comply with the notice requirement of La.R.S. 15:501(A). While the state did provide notice of its intention to introduce the results of the breath test to defendant on May 8, 1987, the notice was not provided ten days in advance of trial as required by the statute because the trial began on May 11, 1987. While conceding the notice was not provided ten days in advance of trial, the state argues that La.R.S. 15:501 is inapplicable in the instant case because no attempt was made to introduce a criminalis-tics laboratory certificate. The state’s argument is persuasive and supported by the jurisprudence. La.R.S. 15:499 authorizes certain persons and entities to make proof of examination and analysis of physical evidence by the issuance of certificates. Admissibility of such certificates is governed by La.R.S. 15:500, while La.R.S. 15:501 requires notice of the intent to introduce a certificate. La.R.S. 15:501(A) provides: “The party seeking to introduce a certificate made in accordance with R.S. 15:499 shall, not less than ten days prior to the commencement of the trial, give written notice of intent to offer proof by certificate. Such notice shall include a copy of the certificate.” Clearly the notice required by La.R.S. 15:501(A) only applied when the certificate will be offered into evidence. The state in the instant case called the police officer who administered defendant’s breath intox-ilizer test to testify to the results of that test. Officer Michael Conner testified defendant’s blood alcohol concentration was .30 percent according to the reading obtained after defendant took the test. While a certificate attesting to that result may have been available, no such certificate was offered into evidence. When faced with this very issue in State v. King, supra, this court stated, “The requirement of R.S. 15:501 to give notice is operative only when the certificate is used in lieu of the testimony of the preparer of the lab certificate.” Given the wording of La.R.S. 15:501 and State v. King, supra, it was not error for the trial judge to admit the results of the breath intoxilizer test even though notice was not properly given. Therefore, this assignment of error lacks merit. HABITUAL OFFENDER By his last assignment of error defendant contends there was insufficient evidence to find him a habitual offender under the provisions of La.R.S. 15:529.1. Under La.R.S. 15:529.1, “Any person who, after having been convicted within this state of a felony ... thereafter commits any subsequent felony within this state, ...” is considered a habitual offender and may be sentenced under the provisions of that statute. In State v. Lee, 364 So.2d 1024 (La.1978), an insufficiency of the evidence claim was rejected where “defendant’s prior convictions were established by the certified copies of the bills of information, minutes of court and jury verdicts reflecting defendant’s convictions and sentences for the crimes charged.” In the instant case copies of a 1978 bill of information and minutes of court were offered to prove defendant’s prior felony conviction. Count one of that bill of information charged the defendant with a third offense driving “while under the influence of intoxicating beverages”, and lists the two previous convictions. Count two of the same information charged defendant with operating a motor vehicle in violation of a court order, a violation of La.R.S. 32:1480. A true copy of the minutes of the Thirty-first Judicial District Court for May 23, 1978 reflect that the defendant appeared in court, withdrew previously entered not guilty pleas, and entered a plea of guilty to each offense. The minutes list the first offense as “Ct. 1. Driving While Intoxicated.” On appeal defendant now argues that the minutes do not establish that the predicate offense was a felony. We find this argument to be without merit. The minutes obviously reflect guilty pleas to the charges contained in the bill of information which specifically list one of the offenses charged as driving while intoxicated, third offense. The minutes show that the defendant was sentenced to serve five years at hard labor on the driving while intoxicated offense. Under La.R.S. 14:98(D), five years at hard labor is the maximum sentence of imprisonment for a third offense DWI. The maximum sentence of imprisonment for each of the two misdemeanor DWI offenses, under La.R.S. 14:98(B), first offense, and La.R.S. 14:98(C), second offense, is six months. Neither La. R.S. 14:98(B) or (C) provide for imprisonment at hard labor. At the May 23, 1978 court proceeding the defendant was also sentenced to serve five years at hard labor for driving in violation of a court order. Both sentences were to run consecutively. This was an illegal sentence since the statute violated, La.R.S. 32:1480, only provides for five years imprisonment. Subsequently, on March 25, 1980, both of defendant’s prior sentences were vacated and he was re-sentenced to five years at hard labor with credit for time served on the third offense DWI and five years in the parish jail for driving in violation of a court order, with one year credit for time served. Again, both sentences were to run consecutively. At the habitual offender hearing in the case at bar, Logan Nichols, an Assistant District Attorney, testified that he was present at the March 25,1980 hearing. He identified the defendant present in court as the same Chester Bennett, Sr. who pled guilty on that date to driving while intoxicated and was sentenced to serve five years at hard labor. In view of the above evidence we find that the state established that the defendant in the case at bar was convicted of a felony, a third offense DWI, on March 25, 1980 and also, for a third offense DWI on May 13,1987 and was thus a habitual offender. Under this same assignment of error, defendant next contends there was insufficient evidence to find him a habitual offender because the state failed to show the date of discharge of defendant on the previous felony conviction. La.R.S. 15:529.-1(C) provides: “This section shall not be applicable in cases where more than five years have elapsed since the expiration of the maximum sentence, or sentences, of the previous conviction, or convictions, and the time of the commission of the last felony for which he has been convicted. In computing the period of time as provided herein, any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said five year periods.” The five-year period provided by this section begins to run from the date the felon is actually discharged from state custody and supervision rather than the theoretical date on which the sentence imposed would have ended absent diminution of sentence for good behavior, commutation of sentence, or pardon. State ex rel. Wilson v. Maggio, 422 So.2d 1121 (La.1982); State v. Martin, 400 So.2d 1063 (La.1981); State v. Vincent, 387 So.2d 1097 (La.1980); State v. Anderson, 349 So.2d 311 (La.1977); State v. Jefferson, 511 So.2d 794 (La.App. 4th Cir.1987); State v. Killion, 483 So.2d 1281 (La.App. 4th Cir.1986), writ denied, 492 So.2d 1215 (La.1986). La.R.S. 15:529.1(F) states: “The certificates of the warden or other chief officer of any state prison, or of the superintendent or other chief officer of any penitentiary of this state or any other state of the United States, or of any foreign country, or of any chief officer of any parish or county jail in this state or any other state of the United States, or of the clerk of court of the place of conviction in the state of Louisiana, under the seal of his office, if he has a seal, containing the name of the person imprisoned, the photograph, and the fingerprints of the person as they appear in the records of his office, a statement of the court in which a conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison or penitentiary, shall be pri-ma facie evidence of the imprisonment and of the discharge of the person, either by a pardon or expiration of his sentence as the case may be under the conviction stated and set forth in the certificate.” This provision sets forth what we feel is a “nonexclusive” means of establishing the date of discharge. That is, evidence other than a warden’s certificate may be sufficient to establish the date of discharge. Just as the burden is on the state to establish the prior felony conviction^), it must also establish that the five-year period has not elapsed. If it has been five years or more since the date of discharge for the predicate felony offense, the state may still show that the five-year cleansing period was interrupted by “any period of servitude” by the defendant “in a penal institution, within or without the state.” Thus, the five-year cleansing period may be interrupted by time served in a parish jail. In the case at bar the state merely introduced the bills of information and minutes of court previously discussed. This evidence showed only that the defendant was convicted of the predicate felony offense, and, on March 25, 1980, was sentenced to serve, consecutively, five years at hard labor with credit for time served and five years in the parish jail with one year credit for time served. Nowhere in the record is there prima facie evidence of the date of discharge from state custody or supervision following completion of his sentence for the predicate felony offense. Nor is there any evidence of how long the defendant may have been in the parish jail on the misdemeanor conviction. Under La.R.S. 15:571.3 the defendant was eligible for diminution of sentence for good behavior or “good time” for both sentences. Considering the computation of good time as set forth in La.R.S. 15.571.4 it is probable that the five-year cleansing period had not elapsed from the date of discharge for the predicate felony offense to the date of the commission of the most recent felony for which he was convicted and multiple billed. Besides the issue of good time, however, we must also consider the possibility that defendant’s sentence was commuted or that he was pardoned. In the case at bar La.R.S. 15:529.1 is being employed to double the prescribed maximum sentence that the defendant could have received for the offense convicted of. In light of the inclusion of Section (C) in the habitual offender statute we feel the legislature intended that, at a minimum, the state must present prima facie evidence of the date of discharge through such means as presentation of a warden’s certificate or evidence of equal weight. This was not done in the case at bar. Accordingly the sentence imposed under La.R.S. 15:529.1 cannot stand. For the reasons assigned, we affirm the conviction of the defendant but vacate the sentence imposed on him. This case is remanded to the trial court for re-sentencing in light of the views expressed herein. AFFIRMED IN PART, VACATED IN PART, REMANDED.

In re Harold Bryant, applying for reconsideration of writ denied April 22, 1988, 523 So.2d 229, from the Twenty-fifth Judicial District Court, Parish of Plaquemines, Sec. A, Nos. 85-1049, and 81-949, to the Fourth Circuit Court of Appeal, Nos. K-6744, and K-6745. Denied.

GARRISON, Judge. This is an appeal from a judgment of the First City Court granted in favor of the plaintiff, Franklin Printing Co., Inc. and against the defendant, Sno-Wizard Manufacturing Co., Inc. awarding the sum of $2100.43 plus legal interest from the date of judicial demand until paid, attorneys fees under R.S. 9:2781 in the amount of 33V3% of the principal and interest due (1V2% per month or 18% per annum) until paid and all court costs. From that judgment, Sno-Wizard appeals. On appeal, Franklin has answered the appeal seeking that the judgment appealed from be amended to award additional attorney’s fees of $1,000.00 because of the appeal filed by Sno-Wizard. But for Franklin’s answer seeking additional attorneys fees, the instant case is strictly one of fact review under Canter v. Koehring Co., 283 So.2d 716 (La., 1973). In the instant case not only was the trial court not manifestly erroneous, but the trier of fact was correct. Ronnie Sciortino, President of Sno-Wizard, ordered labels from Franklin Printing Co. When ordering, he presented his business card reading “Sno-Wizard Manufacturing, Inc.” (P-4). Several adjustments were made to the labels including the cutting of a new dye. Sciortino approved the blue line for the labels. Even though there were several different deliveries spaced over time, all of the delivery receipts bear Sciortino’s signature as acceptor. Sciortino argues that he should only pay for the 2000 labels he used and should be able to return the remaining 5500. As the trier of fact stated in his reasons for judgment: “(2) The Court believes the testimony of the Plaintiff’s witnesses that the agreement between the parties was that the Defendant would be responsible for payment of all of the printed labels delivered to the Defendant, not merely the labels actually used. The Court does not believe Mr. Sciortino’s testimony to the extent that it conflicts with the testimony of the Plaintiffs witnesses. Notwithstanding this finding on the issue of credibility, the testimony of the Plaintiff’s witnesses is corroborated more by the evidence admitted and is the more logical explanation as to what this business agreement consisted of.” Sciortino also argued that the bill was charged to the wrong corporation and that it should have been charged to Sno-Wizard Supplies, Inc. instead of Sno-Wiz-ard Manufacturing Co., Inc. As the trier of fact so aptly stated: “(1) There is absolutely no doubt in this Court’s mind that Sno-Wizard Manufacturing, Inc. is the party and entity responsible for the payment of this account, notwithstanding the Defendant’s allegation that Sno-Wizard Supplies, Inc. is the proper Defendant. The Court believes the testimony of the Plaintiff’s witnesses that Mr. Sciortino presented the Defendant’s business card when negotiations first began, that the only sign on the building where Sno-Wizard Supplies, Inc. is allegedly located reads Sno-Wiz-ard Manufacturing, Inc., and that there is no listing in the yellow pages for Sno-Wizard Supplies, Inc. Mr. Sciortino, the owner of both entities, even admitted in his own testimony that he did not request that the bill be put in the name of Sno-Wizard Supplies, Inc. and that on prior occasions he had paid bills of Sno-Wizard Manufacturing, Inc. with checks from Sno-Wizard Supplies, Inc.” Turning to Franklin’s answer on appeal, at page 34 of the transcript, hearing date Tuesday, March 31, 1987, Susan Waters an employee of Franklin testified that Franklin and Franklin’s attorney had a fee agreement whereby counsel’s fee would be one-third of the amount due plus court costs. R.S. 9:2781(A) provides as follows: “A. When any person fails to pay an open account within fifteen days after receipt of written demand therefor correctly setting forth the amount owed and a copy of the invoices in support thereof, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. If the claimant and his attorney have expressly agreed that the debtor shall be liable for the claimant’s attorney fees in a fixed or determinable amount, the claimant is entitled to that amount when judgment on the claim is rendered in favor of the claimant. Evidence of receipt of written demand by the spouse of the debtor, when they are living together as husband and wife, on behalf of the debtor may be introduced as evidence of written demand on the debtor.” (emphasis added) In the instant case Franklin and its counsel did not agree to an additional amount in the event of appeal. As R.S. 9:2781 is strictly construed, the amount of attorneys fees will not be increased. For the reasons discussed, the judgment below is affirmed. AFFIRMED.

KLIEBERT, Judge. This suit was brought by Carl 0. Brown, Jr., a Louisiana resident, for personal injuries sustained when a vehicle rented by Brown from Reserve Rent-A-Car in Atlanta, Georgia, and operated by Charles L. Bernard, a Louisiana resident, skidded off a North Carolina highway and plunged into a gorge. Brown sued Bernard, St. Paul Fire & Marine Insurance Company (Bernard’s automobile liability insurer) and Liberty Mutual Insurance Company (Reserve Rent-A-Car’s automobile liability insurer). The trial court granted a motion for summary judgment and dismissed Brown’s suit against Liberty Mutual on the grounds coverage was excluded by its policy because Brown violated the car rental agreement by using the vehicle outside Georgia without the written consent of Reserve Rent-A-Car. For the reasons which follow we reverse the judgment of the trial court. In support of its motion for summary judgment Liberty Mutual directed the court’s attention to paragraphs 6 and 14 of the rental agreement which provided in part: “BODILY INJURY — PROPERTY DAMAGE RESPONSIBILITY TO THIRD PARTIES 6. If Renter or other authorized operator is in compliance with all of the terms and conditions of this agreement, Owner agrees to provide coverage for Renter and other operators authorized by Owner during the term of this agreement for bodily injury and property damage claims by third parties equal to statutory limits ...” “VIOLATIONS OF THE CONTRACT 14. Renters’ or other operator’s rights to use or operate the vehicle described and the rights under Paragraphs 5 and 6 shall terminate forthwith and be null and void if said vehicle is used, operated or driven a. In violation of any of the terms and conditions of the agreement in the event of reasonable evidence of such violation. Renter agrees to be fully liable for the entire amount of any damage, loss of expense incurred by Owner or any third party.” “e. By any person other than Renter who signed the rental agreement without the written consent of Owner or Owner’s representative endorsed hereon. f. Outside the state of rental without the written consent of Owner or Owner’s representative endorsed hereon.” 9k $ $ $ 9k # the following provisions on the front page of the car rental agreement in close proximity to Brown’s signature: “VEHICLE SHALL NOT BE OPERATED BY ANY PERSON EXCEPT RENTER AND THE FOLLOWING AUTHORIZED OPERATORS WHO MUST BE VALIDLY LICENSED TO DRIVE AND HAVE RENTERS PRIOR PERMISSION. PERSONS 25 OR OVER WHO ARE MEMBERS OF THE CUSTOMERS IMMEDIATE FAMILY AND PERMANENTLY RESIDE IN RENTERS HOUSEHOLD RENTER AGREES NOT TO PERMIT USE OF VEHICLE BY ANY OTHER PERSON, WITHOUT OBTAINING OWNERS PRIOR WRITTEN CONSENT VEHICLE MAY NOT BE REMOVED FROM STATE WHERE RENTED WITHOUT OWNERS PRIOR WRITTEN CONSENT.” and Amendatory Endorsement NRD 71 (R/Ll) of its policy which provides: “[B] 1. The insurance provided by this policy for the lessee, rentee, its servants, agents or employees or those using the automobile with or without the permission of the lessee or rentee or persons alleged [sic] to be legally responsible for the use of the automobile is subject to the terms, including any limit of liability, conditions, restrictions and limitations contained in the lease or rental agreement, providing our undertaking under this policy is not enlarged or extended.” Liberty Mutual contended that as Bernard did not have Reserve Rent-A-Car’s written permission to drive the automobile, and as the automobile was removed from Georgia, no coverage existed under the policy. The trial court granted the motion for summary judgment because it concluded there was no coverage under the policy because Brown violated the rental agreement by using the vehicle outside the State of Georgia without the prior written consent of the renter. The court did not address the issue of Bernard’s operation of the vehicle and did not say whether the law of Georgia, Louisiana, or perhaps North Carolina was applied in reaching its conclusion. Liberty Mutual contends the law of the State of Georgia must be applied in interpreting the above referenced contractual and policy provision and, once that is done, only one conclusion can be reached — no coverage exists under the policy in light of the facts involved here. Brown does not seriously contest the need to apply Georgia law, but argues that after doing so one must conclude there is coverage under the policy, because the alleged breach of the rental agreement was not so material as to void the policy coverage. Counsel argues that for the coverage to be voided the “misrepresentation” must be such that had a prudent insurer known of the misrepresentation it would have been influenced in accepting or rejecting the risk and/or in the premium computation. It is undisputed that had written permission for Bernard to operate the vehicle and to remove it from Georgia been requested, it would have been granted. Brown and Bernard testified in deposition that Bernard drove the agent back to her office, and Brown testified he told the agent he was going to North Carolina. Although the representative of the rental agency denies that Bernard drove her back to the office, she admits she thought he might drive the car because Brown was awkward in driving the small car. Thus, Brown contends there was a factual dispute as to whether the representative of the rental agency was told or knew Bernard would operate the rental car and that the car would be taken outside of the State of Georgia. Both litigants cite this court to numerous Georgia decisions regarding implied permission for someone to use a non-owned vehicle. However, these cases are non-responsive to the trial court’s reasons for judgment, which clearly indicated it was the removal of the vehicle from Georgia which was the basis for non-coverage under the insurance policy. The parties have not cited this court to Georgia jurisprudence regarding the validity of “place of use” clauses of the car rental agreements and/or insurance contracts. More importantly, the parties have not cited this court to Georgia law as regards oral amendments to car rental and/or insurance contracts. Under Louisiana law, testimonial or other evidence may be admitted to prove that an authentic act or act under private signature was modified by a subsequent and valid oral agreement. La.C.C. Article 1848. We assume Georgia law is the same, as we have not been otherwise informed. Thus, it may be possible for plaintiff to prove (as he alleges) that the Reserve Rent-A-Car agent knew or was informed Bernard was going to drive the car and that the car would be driven to North Carolina, yet took no action to memoralize that knowledge in writing. Plaintiff may be able to prove a valid oral agreement, varying from the written rental agreement, existed. The key to such proof involves a determination as to the validity of disputed facts, i.e., did the Reserve Rent-A-Car agent ride in the car while Bernard was driving, and did Brown tell the agent he planned to drive into North Carolina. La.C.C.P. Article 966 provides that summary judgment should only be granted when the pleadings, depositions, and affidavits on file reveal there are no issues of material fact and that the mover is entitled to judgment as a matter of law. We believe there are material issues of fact which remain unresolved; hence, the motion for summary judgment should have been denied. Accordingly, the judgment of the trial court is reversed and the case is remanded to the trial court for further proceedings. Costs are to borne by the appellee. REVERSED AND REMANDED.

BOWES, Judge. This is an appeal from the trial court’s judgment which denied the plaintiff’s Motion to Compel the Former Liquidator to File a Final Accounting. We reverse. Superior Industries, Inc. was incorporated in 1954 by Leon J. Greff, Oswald Fuerst, and James J. Morrison (who died in 1975). Mr. Greff and Mr. Fuerst continued as officers of the corporation after the death of Mr. Morrison and until the corporation was liquidated in 1981. Litigation on various issues involved in the liquidation of this corporation has spanned several years, culminating with the rendition of judgments in the district court and appeals which were taken to this court. Plaintiff/appellant in this action is Helen Morrison, the widow of James Morrison, Sr. The defendant/appellee is Leon Greff, who, in addition to being one of the original founders and officers of the corporation, was also the former liquidator of the corpo ration from September 18, 1980 until the trial court appointed George Vedros as liquidator on June 23, 1981. The issue currently before this court was raised on a motion by the plaintiff in 1985 to require Mr. Greff to file an accounting for the time that he was the liquidator. The trial court, after a hearing on the matter, denied the motion being under the impression that all of the records in possession of Mr. Greff were removed and turned over to the new trustee and that all assets in this matter had been accounted for and are in the new trustee’s possession. On appeal, only one assignment of error is presented for our review: The trial court erred in ruling that an accounting was not required and/or in not requiring an accounting. Appellant bases her argument on previous occasions during the litigation in which Mr. Greff was requested orally and by formal written motions, subpoenas and depositions, to furnish certain records and stated he had no such records or refused, claiming that he had supplied all pertinent records. However, finally, after Court intervention, and only pursuant to Court orders ordering him to do so, Mr. Greff did actually produce the requested records. Appellee argues that those records of the corporation, which were produced in open court, combined with the trial court’s taking “judicial notice” of all testimony previously entered into the record, is sufficient in the instant case. However, we find the records and testimony in the record do not specifically relate to the defendant’s term as liquidator and as such are certainly no substitute for a written, detailed, accounting for that period of time. In addition, it is hardly likely that any judge could possibly recall accurately all testimony over a six-year period, especially if it relates to hundreds of documents and figures. Appellant argues that LSA R.S. 12:145 G. requires that an accounting be provided. LSA R.S. 12:145 G. states: G. In the performance of his duties, each liquidator shall be bound to exercise that care and prudence in the listing, custody, possession, and control and disposition of the property and moneys of the corporation coming into his hands, and in the proper accounting therefor, and distribution thereof, as by law is imposed upon fiduciaries. We are also cognizant of a criminal statute, LSA R.S. 14:354, which states in pertinent part: Sec. 354. Fiduciaries, failure to file accounts in court; penalty No administrator, tutor, executor, or other person holding fiduciary trusts shall neglect, fail, or refuse, after having been ordered by a court of competent jurisdiction, to file in the court where such trust is exercised, once between the first day of January and the thirty-first day of December of each calendar year, a full and complete account and statement of the trust, [emphasis added] These two statutes when read together lead us to the conclusion that an accounting is required by fiduciaries and failure to do so results in appropriate sanctions by the court. It is a well established principle in our law and, in our opinion, a very basic one, that a person charged with financial trust must be held accountable for that trust. The legislature has codified this principle as it relates to corporation liquidators in LSA R.S. 12:145 G, reproduced above, specifically with the following verbiage “... each liquidator shall be bound ... and in the proper accounting therefor,....” Without a doubt, a person with whom responsibility rests, should in the spirit of that trust, account for all assets and liabilities at the termination of his tenure as liquidator. Otherwise, he would be free to do as he pleases with the assets entrusted to him, even for personal gain. In the instant case, the trial judge, who sat on this case with great patience since its inception in 1980, in his reasons for judgment on this issue, stated: “All of the records in possession of the trustee were removed and turned over to the new trustee who was appointed by the Court. The new trustee indicated that he had searched all of the records to find out if any additional assets were still not recovered. The [new] trustee then stated that all of the records were present and that no other funds were available excepting those which had already been turned over. The Court is satisfied that all assets in this matter have been accounted for and are in the trustee’s possession. Under the present circumstances, an accounting is not required.” [Emphasis added] The record before us does not bear out that such statements were actually made or implied by the new trustee, either by testimony or unsworn statements. The transcript of the hearing on this motion that was held on Friday, the 26th day of June, 1987, indicates that J. J. Morrison, Esq., attorney for the plaintiff, Samuel Dalton, Esq., attorney for defendant, Leon Greff, and George Vedros, Esq., court-appointed liquidator, were all present in court that day. However, a careful reading of the record before us shows that only Messrs. Morrison and Dalton actually argued on the record and Mr. Vedros neither testified nor spoke on the record at this hearing. The statements that the trial court attributes to Mr. Vedros were actually made by Mr. Dalton, an attorney for Mr. Greff. Consequently, the record before us is devoid of any affirmation made by Mr. Ved-ros that all records in the possession of the previous trustee, Mr. Greff, were turned over to him or accounted for. Even if the learned trial judge, and the new trustee, are satisfied that all assets previously under Mr. Greffs control have been accounted for and are in the new trustee’s possession, under the law, appellant and her attorney, and her expert representatives, are entitled to a detailed accounting so that they can judge these conclusions for themselves and have the proper basis for appellate review. Additionally, we are fully aware from the record of Mr. Greff’s past record of producing certain financial records only after being so ordered by the court, and the fact that he was ordered by the court to deposit the sum of $580,000, which he had sought to maintain in his personal account, for whatever reason, into the liquidator’s account. In addition, the record is replete with instances showing Mr. Greff’s recalcitrance to provide complete information to the court and the adverse parties. Consequently, we are left with the question of how Mr. Vedros could possibly know if he had received all of the records he needed if the preceding liquidator provided no accounting from his tenure. In view of Mr. Greff’s demonstrated reluctance to provide accurate and complete records, it appears that he should certainly be required by the court to verify, by an accounting, that he actually has produced or turned over all assets and records from his tenure as liquidator. The appellant originally filed a “Motion to Compel Former Liquidator to File Final Accounting” on June 28, 1985. Therefore, since that time, Mr. Greff has been made aware that he could possibly be required to produce records for a proper accounting from his tenure as liquidator, and he should have been prepared to do so in any event as the law requires. We are of the opinion that it would not present a hardship on Mr. Greff to provide an accounting for his nine month tenure as liquidator as the record before us supports the conclusion that even if certain records were lost or destroyed, as Mr. Greff’s counsel claims, there are sources, such as banks, homesteads and tax records, from which Mr. Greff can duplicate the records needed for an accounting. We are cognizant that the present trial judge sat on this long and vexing case since its inception and has done an excellent job. However, on this particular issue, his Reasons for Judgment are not supported by the record before us. We find that the appellant submitted clear and convincing proof of the need for the Court to order an accounting. Consequently, we find that the trial court erred in determining that an accounting is not required in view of the history of this case as reviewed above. Accordingly, the judgment of the trial court is reversed and the appellee, Mr. Greff, is ordered to provide a proper accounting from his tenure as liquidator in accordance with LSA R.S. 12:145(G) within a reasonable time to be fixed by the trial judge as expeditiously as possible. This case is remanded to the trial court for further proceedings consistent with this opinion. All costs of this appeal are to be assessed against the appellee. REVERSED AND REMANDED. . Previous decisions of this court: Reiss v. Superior Industries, Inc., 430 So.2d 260 (La.App. 5 Cir.1983); Reiss v. Superior Industries, Inc., 466 So.2d 542 (La.App. 5 Cir.1985); and Reiss v. Superior Industries, Inc., 507 So.2d 866 (La.App. 5 Cir.1987).

In re Coleman, Anthony; applying for supervisory and/or remedial writs; to the Court of Appeal, Fourth Circuit, No. 88KW-0714; Parish of Orleans, Criminal District Court, Div. “G”, No. 282-037. The relator represents that the district court has failed to act timely on a motion he has filed for production of documents. If relator’s representation is correct, the district court is ordered to consider and act on the motion.

YELVERTON, Judge. Jesse Johnson filed suit against the State of Louisiana, through the Louisiana Department of Agriculture and its agency, the Livestock Sanitary Board, as well as four individuals, to enjoin the inspection of plaintiff’s cattle pursuant to La.R.S. 3:2221 et seq., and to have R.S. 3:2221, 3:2223 and 3:2093 declared unconstitutional. The defendants filed numerous exceptions including exceptions of improper venue. From the granting of defendants’ exceptions of improper venue, the plaintiff has appealed. This litigation resulted when on September 8, 1986, the Louisiana Department of Agriculture notified the plaintiff by letter that the Louisiana Sanitary Board had decided to test his herd for brucellosis, pursuant to the Board’s authority under R.S. 3:2221. The letter notified the plaintiff of the location and date of inspection, and informed him that failure to present the cattle for testing could result in a fine of $1,000 per day pursuant to R.S. 3:2093. The plaintiff then filed this suit to enjoin the defendant from testing the cattle, and to declare R.S. 3:2221-2223 unconstitutional. In an amending and supplemental petition plaintiff named State employees Louis Engler, Ricky Soileau, Dallas Pitre, and Curtis Brown as defendants asking that they, along with the State, be enjoined from testing or inspecting the cattle. The defendants filed a number of exceptions, including improper venue, lack of jurisdiction, prematurity, and vagueness. The trial court granted the defendants’ exceptions of improper venue and dismissed the plaintiff’s suit. The plaintiff appealed contending that the trial court erred in granting the defendants’ exceptions of improper venue. We affirm the granting of the exception of improper venue as to the Livestock Sanitary Board; additionally, we amend the judgment by recognizing, on our own motion, the exception of lack of an indispensable party as to the remaining, individual defendants, and we dismiss the suit for that additional reason. La.R.S. 3:2092.1 provides with reference to the Livestock Sanitary Board: § 2092.1. Domicile; hearings; appeals A. The board shall be domiciled in the city of Baton Rouge, and no suit may be filed against the board at any place other than the parish of East Baton Rouge. In suits against the board, all service shall be made on the director or on any board employee located at the board’s office. In the present case the plaintiff filed suit against the Livestock Sanitary Board in Evangeline Parish, not East Baton Rouge Parish. Therefore, the judgment sustaining the Board’s exception of improper venue is correct. As to the remaining, individual defendants, the pleadings seek to enjoin the defendants from carrying out the directions of the Board, and to declare the statutes granting the authority of the Board unconstitutional. The Board is an indispensable party to such a proceeding, since its interest in the subject matter would be so interrelated, and would be so directly affected by any judgment, that a complete and equitable adjudication of the controversy cannot be made unless it is joined as a party in the proceeding. La.C. C.P. Art. 641. The absence of an indispensable party can be noticed by the court on its own motion. La.C.C.P. Art. 645. In the present case the Board cannot be joined as a party defendant due to improper venue, and thus the absence of an indispensable party cannot be cured by an amendment pursuant to La.C.C.P. Art. 646. When the ground of a peremptory exception cannot be removed by amendment of the petition, the cause of action must be dismissed. La.C.C.P. Art. 934 and Mire v. Hawkins, 177 So.2d 795 (La.App. 3rd Cir.) writ granted 248 La. 367, 178 So.2d 657 (1965), affirmed 249 La. 278, 186 So.2d 591 (1966). No adjudication of a cause of action can be made unless all indispensable parties are joined, therefore the suit as to the remaining defendants must also be dismissed. Id. On this appeal the defendants have also raised the exception of res judicata. In view of our disposition of the appeal we need not consider this exception. For the above reasons the judgment of the district court sustaining the Livestock Sanitary Board’s exception of improper venue is affirmed and the judgment is amended to dismiss the suit as to the other defendants for the failure to join an indispensable party. The costs of this appeal are to be paid by plaintiff, Jesse Johnson. AMENDED, AND AS AMENDED, AFFIRMED.

WILLIAM A. CULPEPPER, Retired, Judge Pro Tem. This is a personal injury suit filed by plaintiff, Lottie Johnson, against Acadiana Medical Center, Inc., and Aetna Casualty and Surety Company, as the liability insurer of Acadiana Medical Center. Trial was held on June 2, 1986, and the plaintiff was denied recovery. The plaintiff appeals this judgment. FACTS On June 20, 1984 Mrs. Lottie Johnson, a 76-year-old woman suffering from a variety of health ailments, including heart trouble and osteoarthritis, was seen by a doctor at the Acadiana Medical Center. The Aca-diana Medical Center is a medical facility which provides medical and pharmaceutical services in Ville Platte, Louisiana. It was renovated for its present use in 1983. The plaintiff testified she had previously visted the Medical Center about once a month since 1971. On leaving the center on June 20, 1984, after a visit to get pain medication, plaintiff opened the exit door with her left hand and took her first step with her right foot. However, the first step from the threshold of the door was only six inches wide, beyond which was a six-inch dropoff to the next step. Plaintiff fell at the first step, sustaining injuries which resulted in three hospitalizations and being placed under the care of an out-patient nursing service for two months. Plaintiff filed suit against the owners of the Medical Center and their insurer, under LSA-R.S. 40:1722 and the Life Safety Code, alleging that the first step of the exit at the Center used by plaintiff was defective in that it was required to be at least as wide as the width of the door (in this case, at least three feet). The trial court held the violation of LSA-R.S. 40:1722 and the Life Safety Code was merely an imperfection or an imperfect situation which did not rise to the level of a defect which presented an unreasonable risk of harm to the plaintiff. Accordingly, the trial court rejected plaintiffs claim. The trial court also held, without explanation, that the Acadiana Medical Center, Inc. and its employees had not been negligent and that, even if the step was defective, Mrs. Johnson was guilty of contributory negligence or had assumed the risk of falling. Plaintiff appeals this judgment. ASSIGNMENTS OF ERROR The plaintiff-appellant makes the following assignments of error: 1. The trial court erred in ruling that the Acadiana Medical Center, Inc., or its employees owed no duty to warn its patients of the dangerous six-inch dropoff and that the Acadiana Medical Center, Inc. was not negligent. 2. The trial court erred in relying upon facts which are not in the record and which are totally unsubstantiated by the testimony or the evidence. 3. The trial court erred in finding that plaintiff was contributorily negligent or had assumed the risk. 4. The trial court erred in ruling that because plaintiff was a resident of Ville Platte and a patient of Dr. Tas-sin, she had constructive notice of the defect and barred her action by assumption of the risk. 5. The trial court erred in ruling that contributory negligence was available as a defense in strict liability. 6. The trial court erred in finding that the steps of the Acadiana Medical Center which are in violation of the Life Safety Code were not defective and did not present an unreasonable risk of harm to plaintiff. APPLICABLE LAW The Duty Owed In Head v. St. Paul Fire & Marine Ins. Co., 408 So.2d 1174 (La.App. 3d Cir.1982), writ denied, 412 So.2d 99 (La.1982), the duty owed by a hospital to its patrons was discussed at page 1178: “The first inquiry is what, if any, duty was owed by the Hospital to plaintiff. Walker v. Union Oil Mill, Inc., 369 So. 2d 1043 (La.1979), stated at page 1047 that: “ ‘The owner and operator of a facility has the duty of exercising reasonable care for the safety of persons on his premises and the duty of not exposing such persons to unreasonable risks of injury or harm. In determining a particular defendant’s duty consideration should be given to the nature of the facility and the dangers presented by it. In considering a defendant’s duty to a particular person, consideration should be given to the person’s age, maturity, experience, familiarity with the premises and its dangers, and other such factors which might increase or decrease the risk of harm to that person. The duty would be greater to a person of young age and immature judgment. It would be lesser to a person with experience, knowledge and familiarity with the premises.’ “[4] The facility that we are concerned with is a hospital which, by its very nature, will be used frequently by the infirm, the feeble, and the elderly. Because of their age and/or infirmities, it is particularly difficult for these persons to safely move about. We believe that a hospital owes a duty to such persons to warn them of the existence of any obstacles or dangers, which may present a hazard to them, as they move about the hospital, or in and out of it. Defendant-Hospital owed this duty to plaintiff.” We find that a medical center, by its nature, owes the same duty to its patrons as a hospital to warn them of hazardous conditions. In Morgan v. Hartford Acc. & Indem. Co., 402 So.2d 640 (La.1981), the court analyzed a situation very similar to the situation of the plaintiff in the case before us. An 83-year-old woman, who could get around on her own without assistance, fell down an eight-inch step located at a doorway between a hall and a gown room in a church, suffering a broken hip. The plaintiff alleged the eight-inch step violated the 1967 Life Safety Code in two respects: the step at the door was not equal to at least the width of the door and the step itself exceeded the maximum height for steps. It was established that there was no warning informing one approaching the passageway that there was an unusual condition, nor was there a highlight of the area to make it more visible, either of which remedies the court found could easily have been provided and would have cured the defective step. See also, Miller v. Broussard, 430 So.2d 330 (La.App. 3d Cir.1983), writ denied, 434 So.2d 1093 (La.1983) (“step up” and “step down” warning signs were held to cure the defective, non-apparent seven-inch change in elevation at a doorway in a public building). In Morgan an architect presented by the plaintiffs testified that the drop separating the two rooms was not apparent. The Morgan court found that positioning the door at the edge of the drop on the high side effectively hid the drop while the door was closed, so that an unsuspecting patron opening the door would step off the drop. According to Morgan, the 1967 Life Safety Code requires that, in the situations where there is a door by a step, a distance of the width of the door must be left between the door and the edge of the step. Morgan, supra, at 642 Footnote 2. The court in Morgan concluded that, in view of the evidence and the fact that the building in question was a church where strangers were often in attendance, the unexpected drop between two rooms in the building without attendant warning presented an unreasonable risk of injury for which the defendant was liable under LSA-C.C. art. 2317. The court also found, for the same reasons, that defendant was negligent in failing to warn of this unexpected condition. The trial court in the present case relied on Cloud v. State, 420 So.2d 1259 (La.App. 3d Cir.1982), writ denied 423 So.2d 1166, 1167 (La.1982), which dealt with variations in the riser heights of steps. No violation of the Life Safety Code was found. However, the present case involves the width of the tread of a step. We find the Life Safety Code establishes that standard for the proper width of a doorway step and failure to comply with this minimum standard under the particular facts of this case constitutes an unreasonable risk of harm. Our conclusion in this regard is based in part on the statements and conclusions which appear in Morgan v. Hartford Acc. & Indem. Co., supra, (particularly footnote 2 which appears on page 642 of the opinion) because the Life Safety Code was not made a part of the record in this case. Moreover, as will be noted later, plaintiff produced an architect who testified concerning requirements of the Life Safety Code. BREACH OF DUTY The burden of proof for imposing strict liability was discussed in Morgan v. Hartford Acc. & Indent. Co., supra, at 641: “The legal requirements for imposing liability under Article 2317 have been described by this Court in Jones v. City of Baton Rouge, 388 So.2d 737 (La.1980) as follows: “ ‘When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others.’ “Additionally, in Shipp v. City of Alexandria, 394 So.2d 267 (La.1980), this Court further explained that: “ ‘An injured party seeking damages under art. 2317 need not prove negligence, that is, that any particular act or omission on the part of the defendant caused his injuries. He must only prove that the thing which caused the damage was in the care or custody of the defendant, that the thing had a vice or defect, that is, that it occasioned an unreasonable risk of injury to another, and that his injury was caused by the defect.’ ” The defendant has admitted that the building was under the care and custody of defendant at the time of the accident. It is clear from plaintiff’s testimony that plaintiff’s injury was caused when she stepped from the exit of the Medical Center to outside where the six-inch dropoff was located, resulting in her fall and injuries. A doctor’s assistant who was working at the Center at the time of the accident testified that she was called to the scene by a patient in the lobby and found plaintiff seated just outside the doorway in the center of the first landing of the porch. She also testified she checked for liquid, leaves, debris, a rug or anything else in the immediate area which might have caused plaintiff to slip, but she found nothing. Therefore, the only remaining issue is whether plaintiff met the burden of proving that the six-inch dropoff created an unreasonable risk of injury. Plaintiff established by unrebutted evidence that the six-inch dropoff violated the Life Safety Code in that the step extended only six inches from the doorway. There must be at least a distance of the width of the door between the doorway and the edge of the step. Plaintiff presented an architect who was accepted as an expert witness without objection and gave unrebutted testimony as to the Life Safety Code requirements and the exact measurements of the dropoff, and gave as his opinion that the dropoff was unsafe because it was an unexpected change of level. We find that because the dropoff was unapparent and unexpected, and there were no signs to warn Medical Center patrons of it, the dropoff presented an unreasonable risk of harm. Warning signs could easily have been provided and would have cured the defect. See Morgan v. Hartford Acc. & Indem. Co., supra, at 642. Therefore, the defendant is strictly liable to plaintiff under LSA-C.C. art. 2317 for her injuries. The defendants attempted to present this case as a “slip and fall case” in the pattern of those cases in which a fall is caused by a person slipping on a foreign object or substance on the floor of the premises. The defendants hang their claim on the fact that Mrs. Johnson used the words “slip” and “slipped” in attempting to explain how she fell. By implication at least, defendants suggest there was no foreign object or substance which could have caused a slip. Our appreciation of the matter is that plaintiffs fall was not caused by the variety of mishap suggested by defendants and her use of the words “slip” or slipped” mean no more than that she did fall. In our opinion she fell for the reasons given above which are attributable to a defect in the premises. CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF THE RISK The trial court found that the plaintiff, as a resident of Ville Platte and a regular patient of the clinic for several years, knew or should have known of the condition of the Medical Center exit and therefore either assumed the risk of falling or was contributorily negligent. We find that the plaintiff was not contributorily negligent. The plaintiff was 76 years old and infirm. Under these circumstances, plaintiffs actions in merely stepping through the doorway and missing this type of step did not fall below the proper standard of care to be exercised by a reasonable person in like circumstances. See Morgan v. Hartford Accident and Indemnity Co., supra; St. Paul Fire & Marine Ins. Co., supra. The defense of assumption of the risk is available to defendant against the strict liability claim and was discussed in Dorry v. LaFleur, 399 So.2d 559, 562 (La.1981): “ ‘The defense of assumption of risk presupposes (1) that the plaintiff had some knowledge of the danger; (2) that he understood and appreciated the risk therefrom, and (3) that he voluntarily exposed himself to such risk. Therefore, except where he expressly so agrees, a plaintiff does not assume a risk of harm arising from the defendant’s conduct unless he then knows of the existence of the risk and appreciates its unreasonable character, including the magnitude thereof, and voluntarily accepts the risk.’ While the court of appeal was correct in applying the defense of voluntary assumption of risk to the case, in so doing it erroneously incorporated in the defense an objective element foreign to the doctrine.” * * * * # * “This is not to say that the plaintiff’s disclaimer of knowledge or appreciation must be taken at face value. This is a fact question. And there are some risks that every man must be held to appreciate, (see Restatement, supra, comment d). There is a plain difference, however, between what one must have known (a finding of actual knowledge) and what one should have known (the imposition of an objective standard of care). “The trial court did not find that plaintiff must have been aware of the puddle which caused his fall. It found only that he should have been aware of it. But such a negligent failure to know is not a defense in a case where contributory negligence does not bar plaintiff’s recovery.” The defendant failed to raise the affirmative defense of assumption of the risk in any pleadings, as required by LSA-C.C.P. art. 1005. However, evidence as to how many times plaintiff had visited the Medical Center in the past was introduced by defendant without objection by plaintiff. This evidence does not apply to the contributory negligence defense to show plaintiff should have known of the condition of the exit and that her conduct fell below the standard to which a person should conform for her own safety and protection, but rather tends to show plaintiff must have known of the condition of the exit and assumed the risk of leaving the building through it. Therefore, the pleadings have been enlarged to include the defense of assumption of the risk, and it can be considered by this court. Assumption of the risk is equated with the victim fault defense to strict liability. Sumner v. Foremost Ins. Co., 417 So.2d 1327 (La.App. 3d Cir.1982). The fault of the victim that defeats recovery for harm occasioned by strict liability imposable upon a defendant involves a voluntary exposure to the risk with full knowledge and appreciation of the danger. Hebert v. Maryland Cos. Co., 369 So.2d 708 (La.1979); Sumner, supra, at 1334. We find the defendant has not established that plaintiff must have been aware of the dropoff in the doorway. The testimony of the plaintiff and the doctor at the Medical Center established that plaintiff had visited the Center about once a month since 1971, although she did not necessarily use that exit each time. However, although plaintiff may have encountered the defective step before, testimony was given that plaintiff was in pain when she visited the Center on the day of the accident and had gone there to pick up medication for her back pain. The plaintiff never stated she was aware of the danger of falling down the step, and the testimony tends to show that, because of plaintiff’s back pain at the time, she was unable to appreciate and avoid unexpected hazards in the passageways of the Center. Since a medical center owes a duty to warn its infirm, feeble and elderly patrons of obstacles which either their infirmities or age make it difficult for them to safely negotiate, we hold that defendant has not established that plaintiff did knowingly and voluntarily assume the risk of falling at the defective step in the exit doorway. Nor do we believe that, at the time of the accident, plaintiff understood and appreciated the risk of falling in the doorway. Therefore we hold defendant strictly liable for plaintiffs injuries caused by the defective condition of the doorway. QUANTUM The testimony of plaintiff and her two treating physicians and the medical records showed that, as a result of her fall, plaintiff suffered a trauma to her right elbow and a severe avulsion on the top of her right foot which required 50 stitches. The avulsion on plaintiffs foot later became gangrenous, requiring a skin graft taken from her right thigh. Plaintiff subsequently used a walker for a while and paid a neighbor $30 per week for five weeks to help her around the house. Plaintiff was hospitalized three times for a total of two weeks. We find plaintiff has proven medical expenses to support an award of $9,124.50. We also find plaintiff is entitled to an award for general damages of $25,000. See Bivalacqua v. Aube, 493 So.2d 209 (La.App. 5th Cir.1986); Wilkinson v. Hartford Acc. & Indem. Co., 421 So.2d 440 (La.App. 3d Cir.1982); Rester v. T.L. James Const. Co., 415 So.2d 272 (La.App. 1st Cir.1982), writ denied, 420 So.2d 446 (La.1982); Great American Ins. Cos. v. Marshall, 355 So.2d 1044 (La.App. 4th Cir.1978). CONCLUSION Accordingly, for the reasons assigned above, the judgment of the trial court is reversed and the plaintiff is awarded $34,-124.50 for damages, with interest from date of judicial demand. The costs of appeal are assessed to defendant. REVERSED AND RENDERED. .In Murray v. Kuhn, 345 So.2d 917 (La.App. 4th Cir.1977), the court held that, although the defense of contributory negligence had been raised through pleading that plaintiff was negligent, and therefore could be considered on appeal, the defense of assumption of risk was not raised in the pleadings and would not be considered. But see, Ernest v. Smith, 306 So.2d 926 (La.App. 1st Cir.1974), writ refused, 310 So.2d 645 (La.1975), which held the defense of assumption of the risk was pleaded through asserting the plaintiffs injuries were caused solely by his own negligence. We believe the holding in Ernest, supra, confused the different burdens of proving contributory negligence and assumption of the risk by erroneously relying on Pax-ton v. Ballard, 289 So.2d 85 (La.1974), which held that pleading the negligence of plaintiff was sufficient to assert the affirmative defense of contributory negligence. However, in the case before us, we find that assumption of the risk was raised by enlargement of the pleadings at trial. . See Morgan v. Hartford Acc. & Indem. Co., 402 So.2d 640 (La.1981); Head v. St. Paul Fire & Marine Ins. Co., 408 So.2d 1174 (La.App. 3d Cir.1982), writ denied, 412 So.2d 99 (La.1982). . See Sanders v. New Orleans Public Service, Inc., 422 So.2d 232 (La.App. 4th Cir.1982).

WILLIAM A. CULPEPPER, Retired, Judge Pro Tem. This case concerns the validity of a will. The testator prepared an Oklahoma “statutory” will on January 7,1969. On June 15, 1986 he prepared an olographic will in Louisiana. See Appendix 1. On July 12, 1986 the testator took the life of his wife and then his own. His three children subsequently came forward, as heirs, with a petition for probate of the statutory will and with a rule to show why the olographic will should not be declared invalid, both in form and because it contains a prohibited substitution. Since the olographic will named three nonresident beneficiaries, an attorney was appointed to represent them. Through their court-appointed attorney the beneficiaries of the olographic will have opposed the annulment of the will, asserting it to be valid both in form and in creation of a valid testamentary trust. The position of the nonresident beneficiaries is that the trust makes Henry K. Payne (testator’s brother) the trustee for the testa tor’s twin granddaughters until they attain the age of 21 years. At the rule to show cause the trial court annulled the olographic will on the ground that, although it was valid in form, it contained a prohibited substitution. The court, in its reasons for judgment, found the disposition did not comply with LSA-R.S. 9:1731, et seq. of the trust code. The statutory will was proved and admitted to probate. The beneficiaries under the trust (allegedly created by the olographic will) appeal this judgment. ASSIGNMENT OP ERROR The appellants allege the court erred in invalidating a bequest which was intended to be, and qualifies as, a disposition in trust. APPLICABLE LAW The trial court found the olographic will to be valid in form. Since the will contains the necessary animus testandi, date, and signature of the testator and was proved to be written entirely by the testator himself, we affirm the trial court’s finding that it is valid in form. See LSA-C.C. art. 1588. The appellees assert that the olographic will is null under LSA-C.C. art. 1520 because it contains a prohibited substitution. LSA-C.C. art. 1520 states: “Art. 1520. Substitutions and fidei com-missa “Substitutions are and remain prohibited, except as permitted by the laws relating to trusts. “Every disposition not in trust by which the donee, the heirs, or legatee is charged to preserve for and to return a thing to a third person is null, even with regard to the donee, the instituted heir or the legatee.” A prohibited substitution is defined in Baten v. Taylor, 386 So.2d 333 (La.1979), as having three elements: “(1) A double liberality, or a double disposition in full ownership, of the same thing to persons called to receive it, one after the other; “(2) Charge to preserve and transmit, imposed on the first beneficiary for the benefit of the second beneficiary; “(3) Establishment of a successive order that causes the substituted property to leave the inheritance of the burdened beneficiary and enter into the patrimony of the substituted beneficiary.” A trust is defined in LSA-R.S. 9:1731: “§ 1731. Trust defined “A trust, as the term is used in this Code, is the relationship resulting from the transfer of title to property to a person to be administered by him as a fiduciary for the benefit of another.” The pertinent language of the olographic will is: “Scense [sic] this is a divorce involed [sic] I leave V2 of the community to Henry K. Payne to be divided equally Between My Twin Granddaughters when they Become 21 years of age.” The language of the olographic will appears to fit within either of the definitions mentioned above, LSA-C.C. art. 1520 or LSA-R.S. 9:1731. However, when the terms of a disposition attacked as a prohibited substitution are susceptible to interpretation in two ways — one that the disposition contains the elements of a prohibited substitution, and the other that it does not contain them — it is preferable to uphold the interpretation that maintains the disposition. Succession of Moran, 479 So.2d 350 (La.1985). Also, when a will has been written in laymen’s terms and without the aid of counsel, the courts must exempt the language from technical interpretation and seek the clear intent of the testator in a purpose consistent with upholding the testament. Succession of Moran, supra; LSA-C.C. art. 1712. A disposition must be understood in the sense in which it can have effect, rather than that in which it can have none. LSA-C.C. art. 1713. The court must presume the testator did not intend to make an invalid disposition. Succession of Moran, supra. These principles mandate an interpretation of the will as creating a trust instead of as creating a prohibited substitution. Moreover, while the first element of a prohibited substitution mentioned in Baten v. Taylor, supra, is arguably lacking from the will, the third element is definitely missing. The testator has not established an order of succession, since he did not arrange for the property to leave Henry K. Payne’s patrimony at his death and enter the patrimony of his granddaughters. Rather, he left the property to Henry K. Payne only until his granddaughters reach 21 years of age. Therefore, the will does not contain a prohibited substitution, since every requirement must be met for the disposition to be construed as such. Succession of Moran, supra. We find, instead, that a trust has been created. The fact that the testator did not call it a trust is not dispositive of the issue since he wrote his will as a layman without the benefit of legal counsel. No particular language is required to create a trust. LSA-R.S. 9:1753; St. Charles Land Trust, Achille Guibet v. St. Amant, 253 La. 243, 217 So.2d 385 (1968). In Wilbert v. Wilbert, 155 La. 197, 99 So. 36 (1923), the court held that a mystic will which made the testator’s two sons universal legatees, subject to the condition that the effects bequeathed by him were not to be divided for five years and were to be managed by his executors for that time or until the happening of a certain condition, created a five-year trust estate, although the word “trust” was not included in the will. See Appendix 2. See also In re Succession of Abraham, 136 So.2d 471 (La.App. 3d Cir.1962). In Wilbert, the court summed up the State’s policy as to trust estates as: “In other words, a testator, looking to the welfare of his children, after his death, is no longer limited by the provision of article 1710 of the Civil Code, prohibiting charges or conditions from being imposed by him on the legitimate portion of forced heirs, if he should see fit to designate ‘trustees’ in his last will and testament for the protection of his heirs, and, to that end, should direct a prudent administration, in safe hands, of his estate for their benefit.” The court found that an interpretation of the will as merely preventing a partition of the testator’s estate for five years, thus nullifying the provision, would be a “complete repudiation of all that the testator clearly intended, and the sole purpose of his last will and testament would be defeated.” Therefore, since the intention of the testator to create a trust clearly appeared from the language of the will and the trust was a legal and valid disposition, the will was given full effect as written. Having disposed of the issue of the language necessary to create a trust, we now turn to the requisite elements of a trust. Certain elements must be contained in the trust instrument if the validity of the trust is to be sustained. L. Oppenheimer & S.P. Ingram, Trusts, 11 La. Civil Law Treatise § 102, p. 124 (1977): “The trust instrument technically is not required to contain specific language of conveyance provided it is clear that title is being transferred to the trustee, because the creation of a trust automatically and by definition effects a transfer of title to the trust property. “Also, although it is not necessary that the settlor use the word ‘trust’ in the trust instrument, if the settlor clearly indicates in other language of the instrument that he intends to create a trust, still the settlor should state in the trust instrument that he is creating a ‘trust’, to insure that his true intentions are carried out. “The trust instrument must identify the property that is being transferred in trust, either specially (as in a description of land) or generally (as under a universal legacy). “The trust instrument is not required either to name the trustee or to provide a method for the selection of the trustee. If the trust instrument is silent, a trustee will be appointed by the court. It is advisable, however, to name the trustee in the trust instrument so that the intentions of the settlor will be carried out more closely and so that there will be less delay in setting the trust in operation. “Except with regard to certain particularized types of trusts discussed below, a beneficiary must be designated by the trust instrument. The trust fails only if neither an income nor a principal beneficiary is named in the trust instrument. “The trust instrument is not required to provide for the modification, termination or rescission of the trust, to state the terms of the trust, or to regulate the duties and powers of the trustee, the compensation and indemnity of the trustee, or the liabilities of the trustee.” See LSA-R.S. 9:1731, 9:1753, 9:1785, 9:1802. The will before us transfers the property to Henry K. Payne, who is the intended trustee, the property is identified in the will, the trustee and the beneficiaries are named and the nature of the relationship created in the will is that of a trust relationship. A trust instrument shall be given an interpretation that will sustain the effectiveness of its provisions, if the trust instrument is susceptible of such an interpretation. LSA-R.S. 9:1753; St. Charles Land Trust, Achille Guibet v. St. Amant, supra. Since all the requirements for a trust are met, and upholding the interpretation of the will as creating a trust effectuates the clear intent of the testator, we find that a valid testamentary trust has been created. The appellees also assert that, even if the disposition is construed as a trust, the trust is invalid because it is not in the proper form for a trust under LSA-R.S. 9:1752. However, the appellees err in citing R.S. 9:1752, since it is applicable to inter vivos trusts only. This case involves a testamentary trust, under LSA-R.S. 9:1733. “§ 1733. Testamentary trust defined “A trust is testamentary when it is created by donation mortis causa.” “§ 1751. Form of testamentary trust “A testamentary trust may be created in one of the forms prescribed by the laws regulating donations mortis causa.” The testamentary trust herein clearly meets the requirements under LSA-9:1751. The olographic will creating the trust is valid in form. Therefore, the testamentary trust is valid in form. Finally, the appellees contend that the language of the will indicates the testator was having “difficulty in his reasoning facilities.” No contention or evidence of lack of capacity of the testator was introduced into the pleadings or record. Therefore the argument cannot be considered in this appeal. CONCLUSION Accordingly, for the reasons assigned above, the judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion. Costs of this appeal are assessed to the appellees. REVERSED AND REMANDED. APPENDIX 1 APPENDIX 2 The following is the text of the will involved in Wilbert v. Wilbert cited and discussed in the text of the opinion in this case: “I direct that no partition or division of my stock or of my interest in the A. Wilbert’s Sons Lumber and Shingle Co., or in the Myrtle Grove Planting and Manufacturing Company, or of any property that is held in common between me and my said brothers be made between my heirs within five years from my death, unless such company should be dissolved or the property sold before that time; in which event my said heirs are to receive, share and share alike, the portion of my estate in said sale or liquidation. “I give each of my said heirs two thousand dollars per annum, payable quarterly, out of my interest in the companies above referred to for said period of five years. In the event of dividends being declared, these amounts are to be deducted therefrom, and the surplus of all dividends is to be paid over to my said sons share and share alike. “I appoint my brother, Frederick Wilbert, George Wilbert, Charles Wilbert, and Joseph Wilbert, executors, with seiz-in and without bond, to handle, manage and conduct all of my affairs in the companies mentioned above and in all properties, movable and immovable, rights and credits, etc., which I own or hold in common with my said brothers, with full power to sell or dispose of the same or any part thereof, and I charge them with the payment of my just debts. “I also appoint my said sons Philip and Peter, my executors, with seizin and without bond, for the management of whatever property, other than that mentioned in the foregoing paragraph, I may own at my death.”

FORET, Judge. This suit was filed by plaintiff, Dollie Ann Paridon, against defendant, Parish of Rapides, to recover damages she sustained on October 15, 1983 while she was driving a three-wheeler motorcycle on a road located at Camp Claiborne in Rapides Parish. After the trial judge granted defendant’s motion for summary judgment and dismissed plaintiff’s demands, plaintiff appealed. FACTS On or about October 15, 1983, plaintiff was riding a three-wheeled motor vehicle on U.S. Highway 165. Plaintiff turned off this highway and onto La. State Highway 112 in an area commonly referred to as Camp Claiborne, which is an abandoned military reservation in Rapides Parish. She traveled about two miles down Highway 112 and then turned onto another road. While traveling on this latter road, plaintiff struck a barbed wire fence and injured herself. At the hearing on the motion for summary judgment, the defendant introduced the affidavits of Jack DeWitt, the head of the highway department for the Rapides Parish Police Jury; Danny Perkins, a road foreman for the Rapides Parish Police Jury; and Cecil Raggio, Parish Engineer of the Rapides Parish Police Jury Highway Department. These affidavits established that the roadway where plaintiff incurred her injuries was not a roadway under the care, custody, control, or maintenance of the Parish of Rapides. Further, the road where the accident occurred was not even connected to a Rapides Parish road. In fact, the accident occurred on a U.S. Forestry Service road which connects with another forestry service road, which then intersects with a state road that in turn leads to parish roads. The road on which the accident occurred does not connect with any parish road. In opposition to the defendant’s motion for summary judgment, plaintiff submitted numerous maps which show the location of the accident and memoranda in which she urges that the defendant should be legally responsible because it did not adequately designate which roads were parish roads and which were not parish roads. The evidence shows that the accident did occur on a road other than a parish road; and that when plaintiff turned off of Highway 165 and onto Camp Claiborne, a sign, posted by the State, cautioned, “WARNING ABANDONED ARMY CAMP STREETS UNSAFE FOR TRAVEL USE STATE AND PARISH ROADS.” Additionally, Perkins and Raggio testified that the Parish of Rapides did identify its roads with signs that were placed at the beginning of the parish roads. The motion for summary judgment is governed by La.C.C.P. art. 966, which states, in part: “... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” ... Here, the defendant’s documents resolve all genuine issues of material fact. The defendant showed that (1) the road where the accident occurred was not maintained by the parish and was not under the care, custody, and control of the parish; and (2) the parish identified its roads adequately, in that it placed identifying signs at the beginning of the parish roads. Although the parish did not mark roads other than parish roads, they were under no duty to do so. When documents in support of a motion for summary judgment are sufficient to resolve all genuine issues of material fact, their sufficiency shifts the burden to the other party to present evidence showing that a material fact is still at issue. Darville v. Texaco, Inc., 442 So.2d 1246 (La.App. 5 Cir.1983). Plaintiff presented no evidence showing that a material fact was still at issue. She relied on numerous maps and a memorandum. These do not demonstrate that any material fact remained at issue. DECREE We affirm the trial court’s granting of defendant’s motion for summary judgment. All costs of this appeal are assessed against plaintiff-appellant. AFFIRMED.

In re Molenaar, Henry L.; Mele, Mallery C.; applying for writ of certiorari and/or review, and supervisory and/or remedial writs; Parish of Jefferson, 24th Judicial District Court, Div. “G”, No. 349-937; to the Court of Appeal, Fifth Circuit, No. 88-CW-0067. Denied.

BOWES, Judge. Defendants-appellants Edilia and Francis W. Kolb, Jr. appeal a judgment of the district court denying their request for an injunction enjoining the sale of their property by executory process. We affirm. On May 14,1987, Pelican Homestead and Savings Association (hereinafter Pelican) filed a petition to seize and have sold by executory process certain immovable property on Airline Highway in Metairie, Louisiana. It was alleged that Edilia and Francis Kolb borrowed $118,000.00 and executed a first mortgage on the Airline property to secure the loan. It was further alleged that Mr. and Mrs. Kolb were in arrears in their monthly payments for more than thirteen weeks, and that, in accordance with the terms of the note and mortgage, the note was past due and, notwithstanding notice of delinquency and acceleration, was unpaid. After the order for seizure and sale was signed by the trial court, Mr. and Mrs. Kolb filed for and obtained a temporary restraining order prohibiting Pelican from further proceedings in the seizure and sale, alleging that Pelican’s petition was insufficient to support an order of exec-utory process. Specifically, the defendants averred that “Pelican has failed to incorporate an essential allegation of material fact in its petition, namely that the notes sued upon are ‘in default’.” On July 23, 1987, a different trial judge denied defendants’ request for a preliminary injunction and, on August 21, 1987, after a hearing, he again denied their request for an injunction. It is from this ruling that defendants have appealed. Defendants aver on appeal that a creditor seeking to foreclose on property by executory process must specifically allege that the debt or debtor is “in default.” In support of this contention, defendants cite Assoc. Financial Ser. of America v. Rogell, 449 So.2d 526 (La.App. 5 Cir.1984); Chrysler Credit Corp. v. Stout, 404 So.2d 304 (La.App. 3 Cir.1981); and May Co., Inc. v. Heirs of Sumage, 347 So.2d 916 (La.App. 3 Cir.1977). In May, the petition alleged: “... That there is a balance due on said note of $2,403.23 with 18% per annum interest from October 7, 1976, to October 7, 1977, and thence with 8% per annum interest from October 7, 1977, until paid ... That the said Heirs of Dessie Su-mage have refused to pay the note in spite of amicable demand, and petitioner desires to treat said note as entirely due and exigible ...” Emphasizing that executory process is a harsh remedy, and the party using it must strictly comply with the letter of the law, the May court found that the quoted allegation was insufficient to satisfy the harsh requirements of the remedy of executory process, and stated that there was no allegation that the obligation sued upon was in default or that it was due. The court found the May Company failed to offer proper proof under the Codal articles dealing with executory process. In Chrysler, the petition alleged: Petitioner shows payment(s) due on N/A [which counsel for plaintiff acknowledged was an abbreviated form of “not applicable”] has/have not been paid. This default matured the note in its entirety, as of that date, and the entire balance due, the sum of $4,336.73 is now due and owing, despite amicable demand. This allegation was also found to be insufficient to support the executory proceeding, because, as the Court stated “one of the requirements of executory process is that plaintiff must allege and prove by a verified petition or affidavit a breach of a condition of the mortgage which matured the obligation.” (Emphasis supplied). The Court then found that there was no allegation in the verified petition of a failure to pay an installment due on the note secured by the mortgage; and since this fact was also not proved by an affidavit submitted therewith, there was no proof of a breach of such condition of the mortgage that matured the obligation sued for. Finally, in Assoc. Financial Services, the petition alleged: “VIII. In the act of mortgage, the mortgagor(s) further agreed and stipulated that if the note or any installment thereon be not promptly and fully paid when due or in the event of failure to comply with any of the obligations therein undertaken, or conditions therein set forth, the note should at the option of the holder of the note, at once mature and become due and payable, and authorized the holder of the note to cause the property hereinabove described to be then sold after due process of law under executory or other legal process. IX. Defendants paid on said note a total sum of THREE THOUSAND FIVE HUNDRED SIXTEEN AND 68/100 ($3,516.68) DOLLARS leaving a balance of FORTY-NINE THOUSAND TWO HUNDRED EIGHTEEN AND 52/100 ($49,218.52) DOLLARS on said note as of July 23,1982. However despite amicable demand, defendants have failed to pay the installments subsequent thereto the date of filing this petition. X. Petitioner herein exercises its option as the holder and owner of the note in question and declares the balance of the note including principle, interest and attorney’s fees due and payable.” The Assoc. Financial Services court held as follows: ”... the petition does not sufficiently allege that payment of the accelerated total amount of the loan is now in default, or that it has not been paid. We therefore agree with the trial judge that the petition does not allege a material fact essential to maintaining an action by executory process.” The pertinent allegations of the petition in the present case are: XI. That, the said Edilia Suarez, wife of/and Francis W. Kolb, Jr., are more than thirteen (13) weeks in arrears in their payments, the last payment having been made through October 31, 1986. [emphasis supplied] XII. That, in accordance with the terms of the Note and Act of Mortgage, the Note is past due and exigible as to principal, interest, late charges and attorney’s fees and is unpaid, notwithstanding formal notice of delinquency and notice of acceleration, within the time limits set forth in said Act, as outlined in the Authentic Act of Notice of Delinquency and Acceleration attached hereto and made a part hereof as Exhibit C. [emphasis supplied] XIV. Now petitioner shows that there is a balance due of ONE HUNDRED SIXTEEN THOUSAND FIVE HUNDRED FORTY-NINE and 03/100 ($116,549.03) DOLLARS, together with interest at the rate of ... until paid, together with late charges and attorney’s fees in the amount of twenty (20%) percent on the whole of said indebtedness. XV. That, by the terms of said Act, the defendants waived demand for payment. We find that these allegations, which are contained in a verified petition, are sufficient to allege and prove a breach of a condition of the mortgage, which matures the obligation. This is simply another way of stating (and proving) that the note is in default. While we agree with the jurisprudence which requires strict compliance with the law dealing with executory process, we hold that the specific use of the words “in default” is not required. We see no reason to limit the plaintiff to the use of one specific and sacred phrase, or magic words like “in default.” What is indispensable is the proof that a breach of a condition maturing the obligation has occurred. C.C.P. Art. 2637; Bank of Louisiana v. Yolo Corp., 430 So.2d 756 (La.App. 5 Cir.1983). Evidence of such may be proved by a verified petition or affidavits, under C.C. P. Art. 2637. The present petition does indeed comply with the letter of the law, which permits proof of a breach by verified petition for executory process. Thus we distinguish this case from Associated Financial Services, May and Chrysler, all supra. Accordingly, the judgment of the district court denying defendants’ request for an injunction is affirmed. Appellants are assessed all costs of these proceedings. AFFIRMED. . The 3rd Circuit stated in May, at pp. 918: Article 2637 of the Louisiana Code of Civil Procedure (hereinafter the Code) states that the proof of breach of the mortgage need not be submitted in authentic form. It may be proved by verified petition or affidavit. According to Article 2634 of the Code, the petition must be in compliance with Article 891, which states in part: "Art. 891. Form of petition .... It shall set forth the name, surname, and domicile of the parties; shall contain a short, clear, and concise statement of the object of the demand and of the material facts upon which the cause of action is based; and shall conclude with a prayer for judgment for the relief sought. Relief may be prayed for in the alternative.” The petition in the instant suit does not satisfy these requirements. Nowhere do we find an allegation that the obligation is in default and that it is due. Therefore, the defendant-in-reconvention has failed to offer the requisite proof of his demand under the Code. . Louisiana Code of Civil Procedure Article 2634 states: Art. 2634. Petition A person seeking to enforce a mortgage or privilege on property in an executory proceeding shall file a petition therefor, praying for the seizure and sale of the property affected by the mortgage or privilege. This petition shall comply with Article 891, and the plain tiff shall submit therewith the exhibits mentioned in Article 2635. Art. 2637 holds in pertinent part: A. Evidence as to the proper party defendant, or as to the necessity for appointing an attorney at law to represent an unrepresented defendant, or of any agreement to extend or modify the obligation to pay or of written notification of default, or of the breach or occurrence of a condition of the act of mortgage or privilege maturing the obligation, or of advances made by the holder of a collateral mortgage note or note for future advances, need not be submitted in authentic form. These facts may be proved by the verified petition, or supplemental petition, or by affidavits submitted therewith.

In re McCardie, Clara Annie; applying for writ of certiorari and/or review; to the Court of Appeal, Second Circuit, No. 18440-CA; Parish of Jackson, 2nd Judicial District Court, Div. “C”, No. 20420. Prior report: La.App., 504 So.2d 111. Denied. DENNIS, J., would grant the writ.

FORET, Judge. Plaintiff-appellant, Madeline Rabalais, filed suit against Goudchaux Maison Blanche, defendant-appellee, seeking damages for false arrest and malicious prosecution. Goudchaux’s motioned the court for summary judgment on July 14, 1986. The trial court granted this motion, dismissing the lawsuit with prejudice. Madeline Rabalais is a former employee of Goudchaux’s at its Lafayette store. Representatives of Goudchaux’s brought certain evidence to the district attorney’s office in Lafayette Parish that provided the basis for Madeline’s arrest and prosecution on theft charges. On April 9, 1986, Madeline entered a plea of guilty to misdemean- or theft and was sentenced to one year of supervised probation. Additionally, the trial court ordered her to make restitution and pay a fee of $10 per month to the Department of Corrections to defray costs of probation supervision. In Louisiana, to maintain an action for malicious prosecution, certain elements must be present: 1. The commencement or continuation of an original criminal or civil judicial proceeding; 2. Its legal causation by the present defendant. 3. Its bona fide termination in favor of the present plaintiff. 4. The absence of probable cause for such proceeding. 5. The presence of malice. 6. Damages. Blackwell v. Blackwell, 479 So.2d 1085 (La.App. 3 Cir.1985). The record reflects that the trial court refused to accept a plea of nolo con-tendré, and appellant thereafter entered an unconditional plea of guilty to misdemean- or theft. Therefore, appellant stands convicted of a criminal offense, and this conviction arose out of the incident for which she was arrested. This being the case, appellant cannot demonstrate a bona fide termination of the criminal proceedings in her favor. Therefore, she cannot maintain an action for malicious prosecution. As for appellant’s claim for damages for false arrest, there is no evidence in the record to indicate a wrongful detention by the people at Goudchaux’s, Inc. The method and extent of inquiry by the employees of Goudchaux’s, Inc. is not of record. Clearly, there was probable cause to detain and question appellant in light of the fact that a guilty plea was entered in this case. We therefore find that the trial court’s judgment dismissing appellant’s action for false arrest was also proper. Because there exists no genuine issue as to any material fact in these proceedings, and appellee is entitled to judgment in its favor as a matter of law, the trial court was correct in granting a summary judgment in favor of appellee and dismissing the suit, with prejudice. Costs of this appeal are assessed against appellant. AFFIRMED.

YELVERTON, Judge. For the reasons stated in the consolidated case of John Glynn Bordelon, et al. v. Robert J. Kopicki, et al., 524 So.2d 858 (La.App. 3rd Cir.1987) the judgment of the trial court is affirmed. AFFIRMED.

CIACCIO, Judge. Plaintiff, Christine Bouzon, filed suit for separation against defendant, Christopher Bouzon, on the grounds of cruel treatment and constructive abandonment. Mr. Bouz-on answered the suit with a general denial and reconvened for a separation on the basis of Mrs. Bouzon’s cruel treatment and abandonment. The trial court granted the separation, after finding each of the parties substantially free from fault. The defendant appeals the judgment of the district court. We affirm. The record reflects the following: Christopher Bouzon testified that he and the plaintiff lived together for 3 years prior to their marriage. The couple married in 1982 and had no children. He stated that his wife suffered from narcolepsy, a sleeping disorder and she took medication for this condition but he did not realize that his wife was abusing her medication until 1984. The defendant stated that his wife’s medication affected her personality, and his attempts to regulate her medicine were met with her opposition. He stated that, on occasion, she consumed a month’s supply of pills in a couple of weeks. Mr. Bouzon further testified that his wife had unusual sleep patterns, often staying up most of the night watching T.V. instead of going to bed with him. Often when he returned from work he found his wife still in her bed clothes, the house unkept, and no meals prepared. After working 12 to 14 hour days, the defendant, a part owner in a paint contracting business, often had to clean the house, wash the clothes and cook when he returned home. Mr. Bouzon testified that his wife had struck him, would often slam doors when she was angry, and once threatened to bum down their home. According to the defendant, these conditions made his marriage intolerable. He and his wife then discussed a separation. Defendant stated that he did not order his wife out of the house. He stated that he had come home in July and found his wife had taken his coin collection worth thousands of dollars, his tools and personal equipment. At the end of December, 1985 he provided his wife with a moving van to remove her personal effects from their home. Because of all he had experienced with the plaintiff prior to the separation he could not now agree to take her back. Mrs. Bouzon stated her desire to return to her husband. She said that he had told her he did not want to be married and she would have to leave. According to the plaintiff she returned from a Thanksgiving trip to find her house emptied of its furnishings. Mrs. Bouzon said that her husband complained about her taking narcotic drugs for her narcolepsy. This medicine would keep her awake and it accounted for her erratic sleep habits. She admitted abusing the medication but stated that she has since been able to discontinue using the medicine. The defendant said that her husband complained that she did not clean house or wash enough. She said that she kept a clean house, washed clothes regularly and would cook whenever her husband asked her to do so. She admitted that towards the end of the marriage her husband was doing 90% of the cooking. Mrs. Bouzon acknowledged that she did slam doors in the house. She also agreed that she smoked and accidentally burned holes in the furnishings. She attributed her husband’s distress to the pressures of his employment. In seeking a reversal of the trial court judgment, defendant alleges two assignments of error: The trial court erred: (1) in failing to find Mrs. Bouzon at fault in the breakup of the marriage; and (2) in awarding a judgment of separation, finding both parties substantially free from fault. Mr. Bouzon argues that he successfully proved the plaintiffs acts of cruel treatment and the trial court erred in failing to find her at fault. In reaching its decision to award these parties a separation, the trial judge gave the following reasons for judgment: REASONS FOR JUDGMENT Mrs. Bouzon’s medical condition was known to Mr. Bouzon when he married her. Her personal habits were not unknown to Mr. Bouzon when he married her. Subsequent events were reasonably foreseeable. This Court cannot say that she is substantially at fault in the break up of the parties’ marriage. She was reasonably justified under the circumstances in leaving the family home. Mr. Bouzon’s actions and reactions to his wife do establish to some extent that he bears some of the responsibility in the break up of his marriage. But this Court cannot say that his fault was of such a substantial nature that it was the primary cause of the parties’ break up. After giving great weight to the emotions exhibited by the parties during testimony and observing their mannerisms on the stand, this Court concludes that both parties were substantially free of fault in the break up of their marriage. Judgment will be entered accordingly. ****** The trial judge in domestic relations cases is afforded great discretion, especially where his findings rest upon evaluations of credibility. Trosclair v. Trosclair, 337 So.2d 1216 (La.App., 1st Cir., 1976). In such cases the factual findings of the trial court are accorded great weight and will not be reversed unless clearly wrong. Gilberti v. Gilberti, 338 So.2d 971 (La.App., 4th Cir., 1976). Likewise, since “fault” is an issue of fact, the trial court’s findings of “fault” will not be disturbed on appeal unless clearly wrong. Pearce v. Pearce, 348 So.2d 75 (La., 1977) citing Morgan v. Morgan, 260 So.2d 336 (La.App., 4th Cir., 1972). In the case of Pearce v. Pearce, supra at 77-78, the Louisiana Supreme Court discussed the issue of “fault” as follows: ‘We have held that, under this statute respecting an award of alimony to a wife without “fault”, the word “fault” contemplates conduct or substantial acts of commission or omission by the wife viola-tive of her marital duties and responsibilities. A wife is not deprived alimony after divorce simply because she was not totally blameless in the marital discord. Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702 (1959); Davieson v. Trapp, 223 La. 776, 66 So.2d 804 (1953); Breffeilh v. Breffeilh, 221 La. 843, 60 So.2d 457 (1952); Adler v. Adler, 239 So.2d 494 (La.App. 4th Cir.1970). To constitute fault a wife’s misconduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation. Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (1958). In this case the trial judge heard the testimony and saw the witnesses. He concluded from what he saw and heard that the parties were “substantially free from fault.” The trial judge apparently concluded that the actions complained of on the part of both husband and wife, taken individually or collectively, did not amount to such a course of conduct as would equate to cruel treatment or abandonment within the meaning of Louisiana Civil Code Art. 138. After reviewing the testimony of the parties, under the circumstances of this case, we cannot say that his finding was clearly wrong. Defendant also argues that the trial court erred in awarding the parties a judgment of separation after finding them to be free from fault. We disagree. The grounds for legal separation in Louisiana are set forth in Louisiana Civil Code Article 138 Secs. (3), (5), (10). It provides, in pertinent part: Art. 138. Grounds for separation from bed and board Separation from bed and board may be claimed reciprocally for the following causes: 3. On account of habitual intemperance of one of the married persons, or excesses, cruel treatment, or outrages of one of them toward the other, if such habitual intemperance, or such ill-treatment is of such a nature as to render their living together insupportable; * lit * * * * 5. Of the abandonment of the husband by his wife or the wife by her husband; ****** 10. When the spouses have lived six months separate and apart, voluntarily and without reconciliation; provided that both spouses shall execute an affidavit attesting to and testifying that they have so lived separate and apart and that there exists irreconcilable differences between the spouses to such a degree and nature as to render their living together insupportable and impossible. In all such cases, the proceedings shall be entitled “In the matter of _ (petitioner) and his (or her) spouse At the conclusion of the trial the judge indicated an intent to grant a judgment of separation based on the parties living separate and apart for six months. (Tr. pp. 117 and 118). He did not specifically state this as grounds for the judgment of separation in his reasons for judgment. Appellant urges that no judgment of separation could be granted on the basis of Louisiana Civil Code 138 (Sec. 10) because neither party alleged that ground. Mrs. Bouzon’s petition was filed only two weeks after the initial separation and Mr. Bouzon’s recon-ventional demand was filed less than two months after the separation. Neither par ty amended their pleadings prior to trial, which took place approximately one year after the separation. Appellant asserts the invalidity of the judgment, since the parties were not separated “voluntarily” as required by Louisiana Civil Code 138 Sec. 10, and, further, that the cause of action for 6 months separation did not exist at the time of the filing of either petition. Appellee relies upon the case of Whiteley v. Whiteley, 490 So.2d 1128 (La.App., 5th Cir., 1986) and Collins v. Collins, 485 So.2d 956 (La.App., 5th Cir., 1986) writ den. 488 So.2d 203 (La.1986) in urging us to uphold the validity of the judgment since the parties were living separate and apart for more than 6 months at the time of trial. We find these cases controlling. The facts in Collins, supra are closely alligned to those in the present case. In Collins the parties were separated for approximately two weeks when the wife filed suit for separation on the grounds of cruel treatment and the husband’s abandonment. The husband reconvened on the basis of his wife’s cruel treatment and abandonment. Neither party sought a separation on the basis of living separate and apart for six months as the result of irreconcilable differences which rendered living together insupportable. La.Civil Code 138(10). Likewise neither party filed an affidavit attesting to such grounds. At the time of trial the parties had been living separate and apart for six months and had testified under oath to the existence of irreconcilable differences between them. The trial court in Collins found that this was a sufficient basis to decree a judgment of separation from bed and board under Section 10 of Civil Code Article 138. In our case, although the parties were not living separate and apart for six months at the time of their respective filings for separation they had been living separate and apart for more than six months at the time of trial. Although no affidavit of irreconcilable differences was presented and although the parties’ conduct was not sufficient to constitute legal fault, it was sufficient to prove the existence of irreconcilable difference so as to render the couple’s living together insupportable. For these reasons we find the trial judge correctly granted the parties a legal separation. Accordingly the judgment of the trial court is affirmed at appellant’s cost. AFFIRMED.

DOUCET, Judge. For the reasons assigned in the consolidated case of Nasello v. Transit Casualty Company, et al, 524 So.2d 1235 (La.App. 3rd Cir.1988), rendered this day, the judgment appealed is AFFIRMED in accordance with the views expressed in the companion case. AFFIRMED.

BARRY, Judge. The defendant was convicted of possession of cocaine with the intent to distribute, La. 40:967, and sentenced on June 4, 1987 to seven years at hard labor. On the same day a motion for appeal was granted (KA-8206) and the State filed a multiple bill. Under La.C.Cr.P. Art. 916(8) the trial court retained jurisdiction to sentence the defendant as a multiple offender. On July 7,1987 a second multiple bill was filed by another assistant district attorney. Both bills listed the same predicate offense, (#315-149), relative to possession of methylphenidate, but listed the wrong date for the bill of information on the instant charge. The first bill specified March 19, 1987 and the second February 10,1987, whereas the correct date was March 23, 1987. That typographical error and the filing of two multiple bills did not create prejudice since the defendant was adequately informed of the multiple bill(s) and he did not raise an objection prior to the adjudication. See State v. James, 305 So.2d 514 (La.1974); State v. Sam, 304 So.2d 659 (La.1974). The defendant pleaded guilty to the multiple bill, the original sentence was vacated, and he was resentenced to ten years at hard labor without good time. A second motion for appeal was granted (KA-8744). The two appeals, Nos. KA-8206 and KA-8744, are now consolidated on our own motion. The defendant’s only assignment of error claims that his guilty plea to possession of methylphenidate (the predicate offense) is invalid because he was not advised of his right against self-incrimination and did not knowingly waive it. A guilty plea is not valid unless it is an intelligent and voluntary choice. The defendant must expressly and knowingly waive his right to trial by jury, his right to confront his accusers, and his privilege against compulsory self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971). If the defendant objects to the vol-untariness or its being a knowing plea, the State must affirmatively show through a contemporaneously recorded transcript that the plea was voluntary and made with an awareness of its consequences. State v. Bolton, 379 So.2d 722 (La.1979). While it is preferable for the trial judge to conduct a colloquy with the defendant to ascertain the validity of the plea, such colloquy may not be indispensable, as long as the record contains some other affirmative showing to support the plea. State v. Halsell, 403 So.2d 688, 690 (La.1981). At the multiple offender hearing the State introduced the bill of information, the guilty plea form, the docketmaster, the minute entry on July 31, 1986 (date of the guilty plea), and the Boykin transcript of the predicate offense. The colloquy in that transcript provides in pertinent part: BY THE COURT: Mr. Kelly, I have talked to your attorney. I think your attorney has talked to you about what I said I would do. BY MR. KELLY: Yes, sir. * * * # * * BY THE COURT: Do you understand that you are giving up your right to be tried before a judge or a jury, and the right to face and cross examine the people who are accusing you of this crime? BY MR. KELLY: Yes, sir. BY THE COURT: Did anybody force, threaten or intimidate you into entering this plea? BY MR. KELLY: No, sir. BY THE COURT: Do you understand that you are giving up your constitutional right to take the witness stand and say anything you wanted to say in your own defense? BY MR. KELLY: Yes. BY THE COURT: Let the plea be recorded. Although the colloquy does not cover the right against self-incrimination, the guilty plea form signed by the defendant covers the trilogy of rights. The court mentions that defense counsel talked to the defendant concerning his plea. On the plea form the defendant states that he understood the charge, wanted to plead guilty to possession of methylphenidate, and knew the potential range of sentences. He indicated that he understood and waived his right to a jury trial and to an appeal if convicted; to face and confront his accusers; the privilege against self-incrimination or having to take the stand and testify; and to have the court compel witnesses to testify. The defendant initialed each specified right on the form. He also initialed the subsequent statement that he was pleading guilty because he was guilty of the crime, had not been forced, intimidated or promised anything in return for the plea, and was fully satisfied with his attorney and the court. The form was signed by the defendant, his counsel, and the trial judge. It clearly advised him of the privilege against self-incrimination as it would apply at trial and clearly provides for a waiver of that right. See State v. Age, 417 So.2d 1183 (La.1981). The minute entry provides: After conferring with attorney Watters the defendant waived the reading of the Bill of Information and entered a plea of Guilty as Charged. The defendant was sworn and Boykinized as per notes of the Court Reporter. The Court ordered the Guilty plea recorded. Although a colloquy is preferred to prove a waiver of rights, other proof may be shown. See State v. Nuccio, 454 So.2d 93 (La.1984); State v. Halsell, supra. A waiver of rights form may be considered, but is not sufficient proof of a knowing and voluntary waiver. See also State v. Rome, 469 So.2d 1150 (La.App. 4th Cir.1985). State v. Arrington, 455 So.2d 1284 (La.App. 4th Cir.1984), also involved a colloquy which did not mention the privilege against self-incrimination. There the guilty plea form clearly listed the right against self-incrimination along with the other rights and was initialed and signed by the defendant. Defense counsel stated that he had advised the defendant of his constitutional rights and was satisfied that his client understood. This Court found those facts constituted a sufficient affirmative showing that the defendant had knowingly, intelligently and voluntarily waived his right. In State v. Payton, 490 So.2d 554 (La.App. 4th Cir.1986), this Court held as sufficient a colloquy which recited only the right to a trial by jury, but in which the defendant answered a judge’s query with the statement that his attorney had explained the three Boykin rights listed on his waiver of rights form that he had initialed and signed. In State v. Monroe, 508 So.2d 910 (La.App. 4th Cir.1987), the colloquy did not mention the right against compulsory self-incrimination, but the guilty plea form listed the three rights. During the colloquy the defendant answered affirmatively when asked whether defense counsel had explained the Plea of Guilty and Waiver of Constitutional Rights form. Citing to Arrington and Payton, the Monroe Court concluded the defendant had knowingly and voluntarily waived his right against self-incrimination. The Supreme Court considered a similar deficient colloquy in which the defendant answered affirmatively when asked if he understood his rights and whether his attorney had gone over each paragraph. The court relied on defense counsel’s written attestation that the defendant had been informed of his rights (including the privilege against self-incrimination) and the guilty plea form to find a valid waiver. State v. Halsell, 403 So.2d at 692. In State v. Tucker, 405 So.2d 506 (La.1981), the Supreme Court considered a plea form and a minute entry admitted at the multiple offender hearing. The minute entry stated that the trial court “questioned the accused under oath regarding his plea of guilty.” In the plea form the defendant admitted his guilt, acknowledged his potential sentence, and indicated that he understood the triad of rights and waived them (initialed seven times including the three rights). The defendant, his attorney, and the trial judge signed the form. The Supreme Court found a valid waiver. See also State v. Dunn, 390 So.2d 525 (La.1980); State v. James, 458 So.2d 501 (La.App. 4th Cir.1984). We find there is a sufficient affirmative showing that the defendant knowingly, intelligently and voluntarily waived his constitutional privilege against self-incrimination. The predicate guilty plea was valid and a basis for the multiple offender charge. The defendant’s conviction and sentence as a multiple offender are affirmed. AFFIRMED. . The defendant’s name is spelled KELLY and KELLEY throughout the record.

YELVERTON, Judge. Joseph Craig Henderson filed suit for damages for personal injuries against Eastman Whipstock Pilot, Inc. (Eastman). At the conclusion of the trial the jury returned a verdict in favor of Eastman. On its verdict form the jury indicated that Henderson assumed the risk of his own injury. From the judgment on the verdict, plaintiff appeals. The sole assignment of error is the failure of the trial judge to strike from the record the testimony of a defense witness who had allegedly violated a sequestration order. We find no error in this ruling and we affirm. The salient facts are these. On December 10, 1982, Henderson, a truck driver, went to Eastman’s pipe yard in Broussard, Louisiana, to pick up a load for transport to Wyoming. Among the items to be hauled was a packaged unit consisting of a wooden pallet, loaded with two crossover bit subs. The subs were nine and one-half inches in diameter. They were two and one-half to three feet long and weighed about five hundred pounds each. The subs, which were used to drill oil, were made of solid steel. By the use of a fork lift the unit was placed on the edge of Henderson’s truck. While the forklift operator, an Eastman employee, was positioning the unit on the truck, the back side of the wooden pallet collapsed, causing one of the subs, which were not secured to the pallet, to roll from the pallet onto the forks of the forklift. At this point Henderson, according to testimony, grabbed the rolling sub with his hand in an attempt to prevent the sub from falling to the ground. Henderson was injured when his hand was pinched between the sub and the fork of the forklift. At the trial before the testimony began, the parties requested that the witnesses be sequestered, and the trial judge ordered sequestration. The defense presented two witnesses, both of whom were eyewitnesses: Howard Morgan, the forklift operator, testified in court, while the testimony of the other witness, Scott Worth, was presented via video deposition. On cross examination Morgan testified that on two separate occasions, with the knowledge of defense counsel, he read a transcript of Worth’s video deposition. Morgan testified that he reviewed the deposition once before trial and a second time after the trial had commenced. After this revelation counsel for the plaintiff moved that the testimony of Howard Morgan be stricken from the record. However, the court explained to the jury what had transpired and did not order the testimony stricken. Henderson on this appeal urges with much conviction that the trial judge erred by not striking from the record the testimony of a witness who had violated a sequestration order. After an extensive review of the authority on the subject, as well as the record in this case, we conclude that no prejudicial error was committed. Article 1631 of the Louisiana Code of Civil Procedure is the authority for sequestration of witnesses in a civil case. That article provides, in pertinent part: On its own motion the court may, and on request of a party the court shall, order that the witnesses, other than parties, be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interest of justice, the court may exempt any witness from its order. Sequestration serves the dual purpose of preventing the witnesses from being influenced by prior testimony and of strengthening the role of cross-examination. State v. Johnson, 343 So.2d 155 (La.1977). There is a paucity of decisions on the subject in civil cases and courts seek enlightenment from cases developed in the criminal sphere. Hopkins v. Department of Highways, 350 So.2d 1271 (La.App. 3rd Cir.1977). Not every violation of a sequestration order must result in a sanction, such as the exclusion of testimony. State v. Parker, 421 So.2d 834 (La.1982). The trial judge may, in his discretion, refuse to disqualify an errant witness or impose any other sanction for a violation if the purpose of the sequestration has not been thwarted, or if there is no evidence that the witness’ testimony has been tainted. State v. Marchese, 430 So.2d 1303 (La.App. 1st Cir.1983). In the present case we do not believe that the violation, if any occurred, of the rule of sequestration affected the outcome of the trial. The first time Howard Morgan read the deposition was well before the commencement of the trial, and well before the witnesses were placed under the rule of sequestration. Also, it does not appear that he was present in court on the afternoon when the rule of sequestration was imposed, and based on the record it is probable that he completed a rereading of the deposition before he could reasonably have been made aware that the rule was in force. If Henderson’s case was harmed by Morgan’s reading of Worth’s deposition, the harm was done by the first reading before the trial. The second reading, which was the technical violation complained of, could not likely have done any additional harm. Looking to the totality of the circumstances, we do not believe that Henderson’s case was hampered by this incident. There is no evidence in the record that Morgan’s testimony was altered or tainted because he read the deposition. Morgan testified that nothing he read in Worth’s deposition affected his recollection of how the accident happened. For the above reasons the judgment of the trial court is affirmed, appellant to pay the costs of this appeal. AFFIRMED.

In re National Surety Corp.; applying for writ of certiorari and/or review; to the Court of Appeal, Second Circuit, No. 19431-CA; Parish of Ouachita, 4th Judicial District Court, Div. “B”, No. 86-189. Prior report: La.App., 522 So.2d 1326. Denied.

WILLIAM A. CULPEPPER, Judge Pro Tem. This is a child custody case. Lynda Drewett has appealed the judgment of the trial court which awarded joint custody of the minor children to the parents. The judgment was based on the proviso that Lynda Drewett remain in Sabine Parish, and in the event that she left the state, sole custody would be awarded to Edward Alan Drewett. The appellant asserts in this appeal that the trial court erred in: (1) conditioning an award of joint custody upon appellant remaining in Sabine Parish; (2) refusing to allow testimony regarding the moral character of Edward Alan Drewett’s present wife, Judy; (3) basing its decision solely upon the written report of a court-appointed psychiatrist; (4) failing to allow the parties to examine Dr. Kutz in relation to his written report; and (5) failing to make its in camera interview of the minor children a part of the record. We reverse the judgment of the trial court and remand the case to the trial court for further proceedings. FACTS Lynda Drewett and Edward Alan Drew-ett were married in 1976 and divorced in 1985. Two children were born of the marriage, Jessica Lynn and Edward Simeon. The Drewetts were awarded joint custody of the minor children at the time of the divorce with Mrs. Drewett designated as the domiciliary parent. Mr. Drewett was awarded reasonable visitation rights. Shortly after the judgment of divorce was rendered, Mr. Drewett filed a rule seeking to have a formal joint custody plan implemented specifying each party’s rights with regard to custody. He alleged that Lynda Drewett allowed him to see the children only when she chose to. No further action was taken by the parties on this rule. Thereafter, in June of 1986, Mrs. Drewett filed a petition seeking to set forth specific visitation privileges for Mr. Drew-ett and alleged that Mr. Drewett had refused to return Jessica to her physical custody. On the same day, Mr. Drewett filed a petition for change of custody seeking sole custody of the children. The alleged grounds warranting the change of custody were that the children had been sexually molested by Mrs. Drewett’s nine-year-old sister while in California, that both children had failed in school, and that Mrs. Drewett was not mentally stable and therefore incapable of earing for the children. After a hearing on the rule, the trial court found that the Drewett’s relationship was “characterized by several violent and tumultuous episodes” which adversely affected the minor children. It also found that Mr. Drewett, though not free from fault, appeared to be the more stable of the two parents and that Mrs. Drewett’s plans to move with the children to California were “ill-defined and ill-conceived and not in the best interest of the children.” The trial court concluded that if Mrs. Drewett were to remain in Louisiana, then joint custody would be preferred; however if she moved to California a plan of joint custody would become impossible. Judgment was rendered in accordance with these findings and conclusions. JOINT CUSTODY Joint custody is the preferred custody arrangement and there is a rebuttable presumption that joint custody is in the best interest of the minor child. LSA-C.C. art. 146. In an action to modify a custody judgment, the party seeking the modification must show that a change in circumstances materially affecting the welfare of the child has occurred since the prior order respecting custody. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). In the instant case, the parties agreed to joint custody at the time of the divorce, and it was so awarded by the trial court. However, either of the parents could petition for a modification or change of custody if circumstances have arisen which would rebut the presumption in favor of joint custody. This presumption may be rebutted by showing that joint custody is not in the best interest of the child after consideration of all evidence introduced with respect to the factors enumerated in LSA-C.C. art. 146(C)(2). Moreover, LSA-C.C. art. 146(K) provides that the presumption that joint custody is in the best interest of the child shall cease to exist if either parent changes his or her domicile to another state. However, the parties may by agreement continue joint custody in such a situation. The litigation before us arose when Mr. Drewett learned of Mrs. Drewett’s plans to move to California with the children in order to be near her family. She planned to reside with one of her sisters and go back to school to better her employment opportunities. This move would remove the children from their father, take them from the only home they had known, the school which they attended, and the people with whom they were most familiar. Mr. Drew-ett strenuously objected to the children being taken to California. One very important reason was that, allegedly, the children had been subjected to sexual molestation by Mrs. Drewett's nine-year-old sister while visiting in California. The incident was serious enough to warrant psychological evaluation of the children and a recommendation that they continue seeing a therapist. These factors, in addition to the parents’ own admission that they were unable to reach satisfactory custody arrangements which were in the best interest of the children and that the children had to witness displays of temper and violence on the part of each parent directed toward the other, are sufficient to rebut any presumption that continued joint custody would be in the best interest of the children. Therefore, unless these parties were to agree to continued joint custody in some form, the determination of the trial court should be which of the two parents should be awarded sole custody of the minor children. In reaching the conclusion that the record before us supports a finding that the presumption in favor of joint custody has been rebutted, we make no determination with respect to an award of sole custody. We will remand this case to the trial court for further proceedings consistent with the findings and conclusions expressed herein. In the proceedings on remand the trial court is instructed to provide the parties an opportunity to cross-examine Dr. Stuart L. Kutz with respect to his psychological evaluation of the parties involved in the proceedings below. Further, we find that the trial court erred in excluding testimony or evidence of Mrs. Judy Drewett’s character and reputation. Mr. Drewett has asked the court to award sole custody of the minor children to himself, and any relevant evidence bearing on the children’s new stepmother should be considered in making a determination as to which custody arrangement would be in the best interest of the children. Lastly, we instruct the trial court to make its in camera interview with the children a part of the record. See Watermeier v. Watermeier, 462 So.2d 1272 (La.App. 5th Cir.1985), writ denied, 464 So.2d 301 (La.1985), and Dykes v. Dykes, 488 So.2d 368 (La.App. 3d Cir.1986), writ denied, 489 So.2d 1278 (La.1986). Accordingly, for the reasons expressed herein, the judgment of the trial court is reversed and set aside and the case remanded to the trial court for further proceedings consistent with the views expressed herein. The costs of this appeal are assessed equally to the parties. REVERSED AND REMANDED.

FORET, Judge. On November 26, 1985, Raymond J. Harrison filed a suit in redhibition against Coleman Chrysler-Plymouth-Dodge, Inc. (Coleman) and against Chrysler Corporation (Chrysler) seeking a rescission of the sale of a 1985 Plymouth Horizon. Coleman filed a third party demand against Chrysler for indemnification and for attorney’s fees. The case was tried to a jury, which returned a verdict in favor of Harrison and against both Coleman and Chrysler. The jury rejected the third party demand of Coleman, but specifically found that the car contained redhibitory defects sufficient to justify rescission of the sale; and, that the defects in the car were not manufacturing defects but rather that there had been some intervening abuse, alteration, or other acts which relieved the manufacturer of responsibility for the defects. However, the jury found that Coleman and its salesmen were agents for Chrysler, and thereby held Chrysler liable for Coleman’s actions. Chrysler has appealed the judgment in this suit. FACTS On August 26, 1985, plaintiff purchased a car from Coleman. Mrs. Harrison, wife of plaintiff, handled the negotiations and dealt with John Airhart, a salesman for Coleman. Mrs. Harrison had wanted to purchase a red Plymouth Horizon, but was unable to come to terms with the Coleman salesman. When Mrs. Harrison was unable to close the deal on the red Horizon, Airhart told her that he would give her a new car warranty on another car even though the car had 10,886 miles on the odometer. Airhart also represented to Mrs. Harrison that the car had been a demonstrator. The car had scratches and dents on it, which were apparent to both Mr. and Mrs. Harrison and, although the sale documents indicated that the car was new, both Mr. and Mrs. Harrison acknowledged that they were fully aware that the car was not new and that it had nearly 11,000 miles of usage. Mrs. Harrison testified that Airhart sold the car to her as a new car in order to enable the Harrisons to finance the vehicle for forty-eight months. About a month after the purchase, plaintiffs began to experience problems with the car. The carburetor began acting up, causing the car to stall upon stopping or slowing; the right front wheel began making a “bad” noise; the turn signal switch malfunctioned; the air conditioning system which had been added to the vehicle by the dealer developed a leak; and the transmission would not down shift properly. Plaintiff gave seller at least seven opportunities to repair the car, to no avail. Subsequently, plaintiff learned that the car had been previously wrecked. Plaintiff testified that none of the salesmen at Coleman had ever told him that the car had been wrecked. Plaintiff admitted that after he discovered that the vehicle had been wrecked, he quit working with the dealer about trying to correct problems with it. Plaintiff and his wife stopped driving the car in June of 1986 because of their concern of the safety of the vehicle in light of the problems with the front end. AGENCY RELATIONSHIP The jury found that the defects in the car were not caused by the manufacturer but that an agency relationship existed between Coleman and Chrysler; that due to this relationship and the existence of an intervening defect, Chrysler was liable for the damage because it was the principal and Coleman was its agent. We find that the jury was not manifestly erroneous in finding that the defects were not caused by Chrysler. In attempting to prove that an agency relationship existed between Coleman and Chrysler, plaintiff relies upon an agreement between Chrysler and Coleman styled “Direct Dealer Agreement,” which plaintiff introduced into evidence at trial. No other evidence was offered to prove an agency relationship. Chrysler contends that the agreement should not have been received into evidence and presented to the jury for inspection. At the time that plaintiff introduced the agreement, Chrysler objected to its admissibility for the reason that there had been no proper authentication or foundation for the introduction of the document. We agree. After plaintiff had finished calling his witnesses, he offered into evidence the dealership agreement between Coleman and Chrysler Corporation. Plaintiff did not introduce the agreement in connection with the testimony of any witnesses, but solely upon his own declaration as to the nature of the instrument. There is no testimony which supports the admissibility of the document which plaintiff hoped would sustain his claim. None of the requirements for admissibility of the business records were met. Absent stipulation between counsel as to the admissibility of the agreement, the document is hearsay and should have been excluded. There is no other evidence in the record to show an agency relationship existed between Coleman and Chrysler such as would render Chrysler liable to third parties for the negligence or misrepresentation of Coleman’s personnel. Plaintiff’s petition contains no allegations of an agency relationship between Chrysler and Coleman. The jury’s imposition of liability upon Chrysler was based solely upon a supposed agency relationship between Chrysler and Coleman and its salesmen. As stated in Liberty Mutual Insurance Company v. Standard Drayage Service, Inc., 494 So.2d 1221 (La. App. 5 Cir.1986), writs denied, 497 So.2d 314, 315 (La.1986), “Agency cannot be presumed, and the consent to establish an agency relationship must be expressed or implied ...” With the record being absent of any evidence to show an agency relationship, either expressed or implied, the jury verdict finding Chrysler liable for the actions of Coleman is reversed. Having found that there was insufficient evidence to show an agency relationship between Coleman and Chrysler, Chrysler cannot be liable as principal for the defects in plaintiff’s car, in light of the fact that the jury found that Chrysler was not liable for manufacturing defects. DECREE For the foregoing reasons, the judgment of the trial court casting Chrysler in judgment is reversed and set aside; otherwise the trial court judgment is affirmed. Costs of this appeal are assessed against plaintiff-appellee. REVERSED IN PART AND AFFIRMED IN PART.