text:
    No. 1297.
    David B. Thompson vs. George C. Walker, Testamentary Executor.
    In an action by one partner against another praying ibr a lull anti final settlement of the partnership affairs, a demand that the defendant, who had been left in charge as liquidator after the dissolution, file an account of his gestión, is only incidental to, and not inconsistent with, the main demand.
    Neither is a. prayer to recover at least a certain amount, and such further amount as may he found due on settlement, inconsistent -with tlic action of settlement.
    A'plea of full and final settlement is not sustained by evidence of only a partial settlement.
    APPEAL from the Nineteenth District Court, Parish of St. Mary. Allen, J.

      Breaux & Renoudet, for Plaintiff and Appellant.

      Bon Oaffery, for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

The action is brought by plaintiff, surviving partner of the late firm of Walker & Thompson, against the defendant as executor and legal representative of the deceased partner, Charles H. 'Walker.

The prayer of the petition is : That a full settlement be made by said defendant of all the business affairs of Walker & Thompson (partners as before-mentioned), in manner and form required, and that defendant file a full statement and account on trial, showing amounts received and disbursed and everything in that connection necessary to a final settlement. Hefurther prays that said defendant be condemned to pay plaintiff at least the sum of $1500 before mentioned, and the sum of $544 with interest, and that defendant be condemned to pay as much more as may be found due on general settlement, and that judgment be accordingly rendered.

He further prays that all accounts, claims and demands be finally settled, and for general relief.”

Defendant filed the following exceptions': 1st. That the only action plaintiff is entitled to, if any, is an action for settlement of partnership accounts, and not an action compelling defendant to account.

“ 2d. That no action can be brought by one partner against another for items of indebtedness of an individual character, but that the action is limited to one for settlement of partnership affairs and accounts, and for whatever amount may be found due on balance.

3d. And in case the foregoing are overruled, defendant says that, by notarial act of date 19th July, 1879, plaintiff and defendant fully and finally settled all the partnership affairs of the firm of Walker & Thompson, and that in consequence this action cannot be maintained.”

From a judgment maintaining these exceptions and dismissing the suit, the present appeal is taken.

We think the exceptions have not the slightest merit. The action is unquestionably one for the settlement of the partnership.

The demand on defendant to account is a mere incident of the action, based on the allegation contained in the petition that, by the terms of the dissolution, defendant was charged with liquidation and settlement and with the duty to render such account.

The claim to a judgment for at least the specific sums named is also entirely subordinated to the prayer for a general settlement, iu which, of course, the judgment will be for the amount found due, whether greater or less than the sums named. These particular sums undoubtedly grow out of the partnership relations, and will form elements of the settlement, accordingly as they are sustained or not.

The last exception is inconsistent with the first two. Although we find the act of settlement referred to in the record, we find no note of its having been offered in evidence. But, in any event, it is, on its face, only a partial settlement, and not full and final; and, furthermore, the defendant denies the authority of the agent who acted in his behalf, and also attacks it on the grounds of error and fraud.

All these matters should be settled on the merits of the cause.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed; that the exceptions interposed by defendant he, as such, overruled ; and that the cause be remanded to the lower court to he there proceeded with according to law ; defendant to pay costs of the exceptions in the lower court and those of this appeal.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 1299.
    E. J. Hart vs. C. D. Caffery, Curator.—J. H. Moses, Intervenor.
    An ancient debt, secured by mortgage, always kept alive, and finally acknowledged formally in a notarial act, whereby it is declared to be secured by mortgage on tbe same property, specially described, and wbicb is duly and seasonably recorded in the parish in which the real estate encumbered lies, is entitled to be paid with a first rank, in preference to a debt acknowledged subsequently and secured by an act afterwards executed and next recorded.
    In sucb a case it is immaterial whether the ancient act of mortgage was or not reinscribed within the ten years following its inscription.
    The second act accomplishes the purposes of a reinscription and secures the debt as effectually as if the previous act had been reinscribed, at least as concerns the first subsequent mortgage creditor.
    APPEAL from the Twenty-fifth District Court, Parish of Lafayette. DeBaillion, J.
    O. O. (& J. Moulon for Plaintiff and Appellee :
    1. An act by which property is transferred to another, with the right in the latter to sell the same in satisfaction of a debt due by the transferrer, and the surplus, If any, after payment of said indebtedness to be returned to the debtor is not a sale or a giving in payment. 32 Ann. 949; 36 Ann. 439 ; 35 Ann. 108.
    2. The intervenor has elected his plea of mortgagee and is bound by it. 23 Ann. 699; 35 Ann. 108.
    3. When a title or a real right upon real estate is claimed to be valid under the laws of another State, where it was acquired, those laws must be produced in evidence or proved, otherwise the validity of that title or real right will be made to depend upon our own laws, more especially when that validity is denied. 15 Ann. 491; 9 B. 151; 8 Ann. 134: 14 Ann. 391: 17 Ann. 73: 24 Aun. 387.

      The form of written instruments are governed by the law and usages of the plaee where they are passed; hut their effect must he regulated hy the laws of the place where the property to he affected is situated. C. C. Art. 10; 34 Ann. 797; 3 Ann. 212.
    A conventional mortgage is a contract hy which a person hinds the whole of his property, or aportion of it only, in favor of another, to secure the execution of some engagement, without divesting himself of the possession. C. C. 3290.
    An instrument by v hich mortgaged property is authorized to be sold extra judicially, is not valid under the laws of Louisiana, as far as third persons are concerned, whatever may be its effect between the parties; and that, even if executed out of the State. 3 Ann. 212; 34 Ann. 797.
    An act purporting on its face to be a trust conveyance or deed of trust in fee simple will not be given the effect of an act of mortgage binding on third parties. 34 Ann. 797.
    Reasonable doubt as to the true character of the Act will protect effectually third parties from its operation. 34 Ann. 800-1, opinion Associate Justice Denuer.
    An act executed in Alabama, and avowedly a mortgage under the laws of that State, and affecting real estate in this State, will not, even between the contracting parties, have the effect here which is claimed for it in Alabama, and as a mortgage will not operate as a divestiture of title. 38 Ann. 890.
    Mortgages should be inscribed in the proper boolr, otherwise third parties are protected. Louque’s Digest Verbo Registry, II (C) Nos. 2, 3, 4, 6 and 7.
    To novate a debt twoo onditions must concur. 1st, to extinguish an existing obligation; 2d, to substitute a new one in its place. C. C. 2185.
    Novation is never presumed; it must clearly result from the terms of the agreement or by a full discharge of the original debt. C. C. 2190; Hennen Digest, p. 992, Verbo Novation, Nos. 1 and 2.
    If the pre-existing obligation be only modified in part, and any stipulation of the original obligation is suffered to remain, there is no novation. C. C. 2187; 9 An. 228; 22 Ann. 184; 34 Ann. 534; CJode Napoleon, 1273; Marcadó, vol. 4, p. 582; No. II, 765-768.
    The transfer of a debt without subrogation is not the substitution of a new creditor. Marcadé, Vol. 4, p. 587; No. Ill, 769, 770. C. N. 1273; Civil Code, art. 2163 ; 21 Ann. 5; 27 Ann. 547.
    The laws of registry is te give public notice with reasonable certainty of the essential particulars of a mortgage; and when that is done the purposes of the law are satisfied. 3 Auu. 219; 2 Ann. 251; 5 Ann. 225.
    When the inscription of a mortgage by authentic act contains a copy of all portions of the act upon which the mortgage is based, it complies with the requirements of art. 3348, O. C., although itbe not a copy of the entire act. 35 Ann. 984; 5 R. 225; 6 Ann, 242-349.

      M. IS. Girard for Interven or and Appellant.
   The opinion of the court was delivered by

Bermudez, C. J.

This is a suit via ordinaria, to enforce the payment of a mortgage note, executed on December 3, 1872, and secured hy mortgage by a notarial act, which was recorded on December 11 following in the Recorder’s office of Lafayette Parish, in which the property is situated.

Prom time to time the mortgagor, Perry .Moses, made payments on said note.

On March 3, 1880, plaintiff, as the holder of the note and the drawer thereof, liquidated the indebtedness. Five notes, for different amounts, aggregating the amount due, were furnished by Perry Moses, to represent the former note and to be secured by the mortgage by which the payment of said note was guaranteed, on the same property which was specially described, with the express stipulation that neither the original debt nor the first mortgage would be considered as novated, and that payment of the five notes would extinguish the note and mortgage of 1872.

On October 20, 1885, Perry Moses appears to have executed a mortgage in favor of J. H. Moses, to secure payment of an indebtedness on the same property.

This act, the validity of which was impugned, was recorded on October 25th following.

This second mortgage creditor intervened, claiming priority over plaintiff, on the ground that the original act of mortgage had not been duly reinscribed, in fact, has not been reinscribed at all, and that the original inscription having perempted, by the lapse of the ten years following it, the debt claimed by plaintiff, although due, has ceased to be secured by mortgage on the real estate originally encumbered.

There was judgment in favor of plaintiff for the amount of his debt, recognizing it as secured by mortgage, and dismissing the intervention.

The intervenor alone appeals.

It is unnecessary to pass upon the question of formal reinscription raised by the intervenor.

Admitting that the original act was never reinscribed, it is enough to entitle plaintiff to recover, that the amount which he sues for was acknowledged as due him, and that its payment-was secured by mortgage on the same property, which' was specially described in the act, and that the instrument, complete in itself, was duly recorded at a date anterior, years previous, to the inscription of intervenor’s act of mortgage.

The act subserves all the purposes which a technical reinscription would have accomplished, at least as concerns the first subsequent mortgage creditor.

Judgment affirmed.


author: Todd, J.

text:
    No. 1302.
    Board of School Directors Parish of Lafayette vs. J. N. Judice, et als.
    Principal cannot, urgo that he has not taken tlio oatli of office, neither can his sureties; and the law will presumo that he did take the oath when lie has performed other requirements of tlio law.

      Persons signing an official bond admit the capacity of the principal, and cannot afterward deny Ms capacity.
    Persons signing unofficial bond as sureties waive dofocts of form. As they bind themselves so shall they bo bound. "Where no separate booh is kept, registry in the mortgage book is sufficient.
    Sureties cannot complain of any act of omission or commission, which does not affect their rights as against the principal.
    Sureties cannot set up ineligibility of their principal when he has acted in the official capacity mentioned in the bond.
    APPEAL from the Twenty-fifth District Court, Parish of Lafayette. DeJBaillon, J.
    jB. O. Smedes and O. D. Oaffery. for Plaintiffs and Appellees.

      M. JE. Girard, for Defendants and Appellants.
   The opinion of the Court was delivered by

Todd, J.

This is a suit by the plaintiff board against John N. Judice, as treasurer of the scliool funds of said parish and the sureties on his official bond for $2640, the amount for which the said Judice is charged with being a defaulter.

Judice made no defense and no appearance.

The sureties, besides the general issue in their answer, set up special defenses, as follows:

1st. Said Judice never was Parish Treasurer; that he did not qualify as such in 1885, not having taken the oath required by law.

2d. The document upon which the plaintiffs rely is not a bond legal in form or substance, or in any way binding on defendants, having none of the requirements of such documents to make it binding — that it is not completed.

3d. It is not attested or authenticated by two witnesses and the Recorder — it is not recorded in a separate book kept for that purpose to operate a mortgage upon all the estate of the principal. ■

4th. It is not accepted by the Parish Board of School Directors and Recorder of the parish, nor has a copy thereof been sent to the Superintendent of Education and State Treasurer.

5th. That the Board failed to adjust his accounts in proper time, (annually at least), and thus through their laches allowed him to become and remain a defaulter.

6th. That a parish treasurer is elected for one year only, and at the end of that or any time,’he is ineligible to the same or any other office unless he has duly and regularly obtained a discharge for any amount of public moneys with which he may been entrusted in that or any other capacity. Defendants also specially allege that in August, 1885, Judice was not eligible to auy office of honor, profit or trust, as he had not obtained a discharge for the public moneys entrusted to him.

There was judgment against the defendants, and the sureties, Hazard Easton and Louis Gr. Breaux, have appealed.

There is no dispute as to the amount of Judice’s defalcation. It is charged and admitted to be $2641 72.

We will now proceed to consider seriatim the special defenses set forth :

I.

This relates to the defense that the sureties are not bound because Judice never qualified as treasurer by taking the required oath, and whether he took the oath is a disputed fact. It is not necessary to determine it, since it is well settled that the sureties on the bond of an officer acknowledge that he is such officer de facto, and are not permitted to deny the capacity of their principal thus recognized. Police Jury vs. Howet, 2 L. 47; Duncan vs. State, 7 Ann. 378; State vs. Blohm, 26 Ann. 538.

The same reasoning and authorities will apply to the contention that the sureties are not bound because Judice was not eligible to the office of treasurer by reason of his having previously filled positions of public trust and been custodian of public moneys, and failing to produce his quietus on account of such previous employments before his appointment as treasurer, in the instance before us. See also State vs. Hayes, 7 Ann. 118; State vs. Securities of Breed, 10 Ann. 492; State vs. Dunn, 11 Ann. 549.

II.

As to the defects in the bond: It is not authenticated by two witnesses and Recorder, and not recorded in separate book, nor accepted by the School Directors, etc.

The requirement for attestation of such bond is merely directory _ The omission of such formality, it has been expressly held, will not affect the liability of the sureties thereon. State vs. Wenfred, 12 Ann. 643; State vs. Hampton, 14 Ann. 725.

There was no separate book kept for recording such bonds as the witnesses testify. The bond was recorded in the book of mortgages, which was sufficient. Copley & Newman vs. Sheriff, 7 Ann. 595; State vs. Hampton, 14 Ann. 725; State vs. Bradley, 11 Ann. 643.

The bond was really accepted by the School Board when Judice was permitted to take charge of the school fund. There was an acceptance of it by the President of the Board, acting under instructions. If, however, there was any omission in this respect, it would not avail the sureties. Expressly ruled in Police Jury vs. Houet, 2 L. 47; Elam, Tutor vs. Barr, 14 Ann. 471; Ib. 725.

The other special defenses appearing in the answer are not insisted on in argument, and we presume are abandoned. We have, however, not omitted to examine them, but we fail to see their force or bearing.

The conclusions reached on the several points of the defense dispense with the consideration of the numerous bills of exceptions.

After a critical review of the whole case, we find no reason to disturb the judgment of the lower court, and it is therefore affirmed with costs.


author: Fenner, J.

text:
    No. 1303.
    Bush & Levert vs. Felix Berard, President, and Members of Police Jury of St. Martin et als.
    A contestation as to the constitutionality or legality of a tax does not arise in a proceeding directed solely against the assessing officers of the State and attacking only the assessment of projierty.
    In such cases, this Court only has jurisdiction when the amount in dispute exceeds §2000; and the amount in dispute is the difference between the taxes due on the assessment assailed and those which would be duo under the reduction asked.
    APPEAL from the Twehty-first District Court, Parish of St. Martin. Mouton, J.

      Breaux & Benoudet for Plaintiffs and Appellants.

      Felix Voorhles for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

The assessor of the parish of St. Martin assessed the property of plaintiffs, situated in said parish, at certain valuations, in which plaintiffs, though dissatisfied, acquiesced. Subsequently, the police jury, acting as a board of reviewers under authority of sections 23 and 24 of act 98 of 1886, revised the assessment rolls, and made certain increases in the valuation of plaintiffs’ property.

The object of the present action is to correct and reduce these assessments.

The petition is lengthy, and nob only assails the assessments as excessive, but attacks the legality of the proceedings of the assessor and of the police jury, and asserts the unconstitutionality of the whole system of- assessment adopted by the legislation of the State.

We must look, however, to the prayer of the petition in order to determine the true object and nature of the action, and, though long, we here transcribe it in full. They pray : “That, after legal proceedings had, it be decreed that said assessment is excessive, extravagant, ununiform, inequitable, incorrect and far beyond the cash value of the property mentioned; that same be reduced to the real cash value of the property, and that'the assessment be made to conform; that it be decided that said board of reviewers has no legal existence and the said police jury no authority in the premises, and that they have acted illegally in every respect; that the increase made on the appraisement of said assessor be declared null and void; that said assessor be directed-and ordered to assess said property at its cash value, and that the judgment of the court shall be his appraisement; and lastly, they 'pray for such orders and decrees as law, justice and equity demand.”

It is obvious that nothing in this demand involves “ the constitutionality or legality of any tax, toll or impost whatever, or of any fine, forfeiture or penalty imposed by a municipal corporation.”

So far as the relief sought is concerned, it touches nothing but the assessment of the property, and asks only a reduction thereof to a proper valuation.

In such cases, we have determined by repeated decisions that our jurisdiction is measured by the pecuniary “amountin dispute,” and that this amount is the difference between the taxes payable on the assessment complained of and those which would be due on the reduction claimed. Minor vs. Budd, 38 Ann. 99; Favrot vs. City, Id. 230; Adler vs. Board, 37 Ann. 507; State ex rel. David vs. Judges, Id. 898; Cobb vs. Maguire, 36 Ann. 801; State ex rel. Rivet vs. Judge, Id. 286; Block vs. Assessor, 35 Ann. 965; New Orleans vs. Blanks (N. R.), 35 Ann. 1201; Gillis vs. Clayton, 33 Ann. 286; Stubbs vs. Maguire, 32 Ann. 817; State ex rel. Newman vs. Hayles, Id. 1135; State ex rel. Crean vs. Bouny, Id. 1191.

It is difficult to conceive how a contestation as to the “ constitutionality or legality of a tax ” could arise in a suit directed solely against the assessing officers of the State.

In one case, we said: “ There never was an issue between the State or parish and the relator as to the legality or illegality of the tax, and it is only in such cases, that an appeal lies to this court, regardless of amount. It may be that the assessment was illegal, and that consequently the adjudication and the sale attacked are nullities, but that does not justify the conclusion that the tax is illegal or unconstitutional.

A tax is deemed illegal or unconstitutional only when there is no law authorizing it, or where, there being such a law, that law is unconstitutional and so, void.

An erroneous assessment does not make the tax illegal. A tax may be legal and constitutional though the assessment be defective. State ex rel. David vs. Judges, 37 Ann. 898.

The foregoing disposes of the case.

It appears from the record, that the total taxes due by plaintiffs on the assessment as fixed by the board of reviewers are $3180 52, and if the assessment was reduced to the lowest cash value admitted by plaintiffs in their petition, the difference in the taxes due would fall far short of two thousand dollars.

It is, therefore, ordered that this appeal be dismissed at appellants’ cost.


text:
    No. 1305.
    C. McD. Puckette vs. A. W. O. Hicks, Judge.
    Where tlie co-proprietor and editor of a newspaper has, under contract with his co-partner, the absolute right to have full editorial control and to dictate its policy and formulate its utterances upon any and all topics and subjects without hindrance or iuterference from his partner or any other source, the deprivation and denial of such right by the acts of his co-partner constitutes an injury for which pecuniary damages would be an inadequate compensation, and, therefore, in the sense of the law, irreparable.
    If an injunction, restraining the party from violating and depriving the other of the exercise of such right, be dissolved on bond, such order of dissolution is an interlocutory decree which may cause anirreparablo injury, and is, therefore, subject to a suspensive appeal.
    ^ PPLICATION for Mandamus.

      Alexander <& Blcmehard and Wise & Herndon for the Eelator.

      R. J. Looney and Bell & Randolph for the Eespondent.
   The opinion of the Court was delivered by

Fenner, J.

The application is for a mandamus to compel the respondent judge to grant a suspensive appeal from an order dissolving a preliminary injunction on bond.

Art. 566, C. P., provides: “ One may likewise appeal from all interlocutory judgments, when such judgment may cause him an irreparable injury.”

Art. 307, C. P., authorizes the courts, “in their discretion,” to dissolve an injunction on bond, “whenever the act prohibited by the injunction is not such as may work an irreparable injury to the plaintiff.”

It is held that the discretion thus vested in the courts is limited to cases where the act prohibited may not work an irreparable injury; that, in the latter case, they have no right or power to dissolve on bond; and that an order dissolving on bond in such cases is itself an interlocutory judgment which may cause an irreparable injury, and is, therefore, appealable under C. P., 566. It is further held that where the judge refuses to grant an appeal from such an order the plaintiff may resort to this Court for a mandamus to compel him to do so.

On application for such mandamus the inquiry in this court is, simply, whether the act, which is prohibited by the injunction and is unfettered by the dissolution, is such as may cause to plaintiff an irreparable injury. If found to be such, the mandamus is granted ; if not so found, it is denied.

In this inquiry, the allegations of the plaintiff’s petition for injunction are to be taken as true, so far as the facts therein set forth are concerned.

By the foregoing it is not meaDt that we are to be concluded by mere allegations in the petition that the acts restrained will occasion irreparable injury. Such allegations are mere inferences and deductions from the acts and facts charged, the verity and soundness of which we may review.

Wo are to examine the facts charged and the nature and character of the injury which may be inflicted by the acts complained of, and are thus to determine whether such injury may be irreparable vel non.

It is difficult to lay down any precise rule as to what gives to an injury the quality of being irreparable; but the general principle is that an injury the damage from which is merely in the nature of pecuniary loss and can be exactly and fully repaired by compensation iu money, is a reparable injury for which a bond of sufficient amount and properly secured may afford all adequate indemnity. But as we have heretofore said: There are many injuries which, in the very nature of things, cannot be repaired by any money consideration, such, for instance, as result from acts which outrage the feeling and wound the sensibilities, or deprive us of objects of affection or of things, perhaps, trivial in themselves, but of inestimable value by reason, solely, of being associated with some precious memory or touching incident of our lives. Or it may be that the maintenance of the writ is required to preserve to us our homes, and to establish us in a state or coudition which, lost for the moment, can never be recovered, nor the loss atoned for by money. In this class of cases, the injunction should be maintained because the injury from its dissolution would be irreparable.” Crescent City vs. Police Jury, 32 Ann. 1194.

The foregoing was quoted Dot as an exhaustive, but as an illustrative, statement of the kind of injuries which are considered irreparable.

Thus it was held that an injunction restraining the destruction of forest trees upon land claimed by the plaintiff to belong to him involved an irreparable injury and could not be dissolved on bond. Delacroix vs Villeré, 11 Ann. 39.

So it was held that an injunction to restrain the sale of plantation, which sale would involve its transfer and loss to the claimant, cannot be dissolved on bond, because while the bond might indemnify for the value of the plantation, it could not restore the plantation itself. White vs. Cazenave, 14 Ann. 57.

So an injunction against acts operating a change of possession of immovable property involves an irreparable injury, because the possession thus obliterated cannot be restored for the time during which it was lost. Marion vs. Johnson, 22 Ann. 512; Boedicker vs. East, 24 Ann. 154; Sigur vs. Judge, etc., 33 Ann. 133.

Injunction to restrain emptying of nuisance-boat in a river, polluting plaintiff’s water supply and constituting a nuisance, was held not dissoluble on bond. Water Works Co. vs. Oser, 36 Ann. 918.

Where members of a Masonic fraternity enjoined their fellow members from excluding them from the enjoyment of the common property and depriving them of the intellectual and moral enjoyment of participating in Masonic meetings and rites, the Court said: “ It would be difficult to estimate in dollars and cents the damage the plaintiffs may sustain by being deprived of their supposed privileges as members of the corporation. A compensation even in damages could not, therefore, be readily awarded plaintiffs. If the plaintiffs have any right at all, they are entitled to maintain their injunction until they can be heard contradictorily with their opponents.” And the order dissolving on bond was reversed. Knabe vs. Fernot, 14 Am. 847.

Such are a few illustrations of the principles guiding this Court in these matters. Each particular ease, however, is to be considered on its own facts and circumstances and the relief determined thereby.

Let us now, therefore, examine the case in hand.

Plaintiff alleges, in substance, that the establishment constituting the “ Shreveport Times” newspaper was leased jointly for the period of three years, by himself and his co-lessee, Johnson, to be conducted by them as a newspaper; and that it was, at the time, agreed between them that plaintiff was to be the editor of the paper and was to have full editorial control of the newspaper, its policy and utterances upon any and all topics and subjects without hindrance or interference from any source; and his co-lessee was to have charge of the mechanical department of said paper in the capacity of superintendent of the typesetting and printing department of the paper;” that, accordingly, during the first year of the enterprise plaintiff had enjoyed sole control as editor; but that, within a few days prior to the suit, Johnson had assumed to interfere with the editorial control, and had given instructions to insert no article of a political nature prepared and offered by Puckette, and had actually thrown out and refused to print such articles and had given a continuing order to the employees in the printing department not to insert such.

The foregoing are pure allegations of fact, which, for the purposes of this proceeding, must be taken as true.

He alleges that this conduct of his co-lessee is a usurpation and invasion of his rights; that it operates a change in the possession and control of the newspaper and deprives him of his just control over its policy and editorial utterances; that it deprives him of the intellectual enjoyment of editing the paper and prevents him from carrying out the policy he had adopted as regards said paper; that he cannot be maintained in his rights as editor without the aid of the court; and that the action of the defendant was calculated to injure and would injure his reputation and standing as a newspaper man and bring him into contempt and disrepute in his vocation.

Upon such allegations the injunction was originally granted, and upon a rule to dissolve it as improvidently and illegally issued on the face of the papers, the judge, after full hearing and with an elaborate opinion, maintained it.

It is impossible and would be eminently improper for us to follow the learned respondent judge in his discussion of the legality and propriety of the injunction itself, unless, on the face of the papers, it was perfectly manifest that the granting of the injunction was an abuse of the powers of the court. This is not the case. The contract set out cannot be treated as one merely for personal services, nor is there any dubiety about the terms or construction of the contract, which must be absolutely accepted as stated in the petition. Therefore, the case of Healy vs. Allen, 38 Ann. 867, does not apply.

It is a suit for the specific performance of a contract and to restrain ihe violation thereof by one party, and we have very considerately held that, “in proper cases” (there indicated), “the courts of this State may and should enforce specific performance of contracts, by both mandatory and injunctive relief,” quoting articles 1926 and 1927, C. C., the latter of which declares: “In ordinary cases, the breach of such a contract (to do or not to do) entitles the party aggrieved only to damages, but where this would be an inadequate compensation, and the party has the power of performing his contract, he may be constrained to specific performance by means prescribed in the laws which regulate the practice of the courts.” Levine vs. Mitchell, 35 Ann. 1126.

The case was quite similar to this one, being for an injunction to resti'ain violation of a partnership contract.

The question is whether, where the editor of a newspaper has by contract the absolute right to have full editorial control and to dictate its policy and formulate its utterances upon any and all topics and sub jects without hindrance or interference from his co-partner or any other source, the deprivation and denial of such right constitutes an injury for which damages would be an inadequate compensation, and, therefore, iu the sense of the law, irreparable.

If we could treat a public newspaper as a purely mercantile enterprise and the vocation of an editor as merely mercenary, perhaps we might maintain the contention of respondent and treat the injury to relator as a simple question of profit and loss, to be adjusted by pecuniary compensation. But surely newspapers have some objects and purposes higher than mere money making. As operated in modern times, they are something more than mere advertising mediums or even purveyors of news. They are organs of public opinion, instructors of the people, advocates of certain fixed policies and principles, the promotion of which must gratify the intellectual and moral desires of their proprietors, even if they do not, in all cases, advance their pecuniary interests. We might well conceive that, though offered the amplest pecuniary inducements to advocate principles or causes which they disbelieved, or to abstain from advocating those which they approved, worthy journalists would reject such propositions with the scorn which they would deserve. We must apply the same rule to the editor of a newspaper. He, too, must be treated as a man who has principles and convictions, a sense of public duty, a devotion to the interests of the people as he understands them; and we must assume that, in executing the functions of his high calling, he seis avalué upon the advancement of such objects far above and beyond any mere pecuniary reward. When, in violation of his clear legal rights, his mouth is muzzled and he is deprived of his power to advocate his principles and convictions in the exercise of his vocation, we are bound to hold that he suffers an injury not susceptible of being measured by a mere money standard, and, therefore, in the sense of the law, irreparable.

The relator is, therefore, undoubtedly entitled to the suspensive appeal for which he seasonably applied.

It is, therefore, ordered and decreed that the provisional writ of mandamus herein issued be hereby made peremptory.

Poché, J., absent.


text:
    No. 195.
    The State of Louisiana vs. Bernard J. Estoup.
    A motion of appeal in a criminal ease must be made in open court (act 1878, hTo. 30, p. 56), within ten days after sentence was passed. "Where the court adjourns on that day, and the motion is made on the day of its reopening, the motion is in time.
    A transcript of appeal in such a case need not be filed before the opening of the appellate court, whatever the return day be. It is in time if filed for such opening.
    A witness on the stand cannot be permitted, over the seasonable objections of the accused, to . testify to what another person has told him touching the circumstances of the arrest of the latter, although such person so stated in presence of the accused, who was then m actual custody, and the latter did not contradict him and remained silent. The prisoner had a right to remain dumb.

      The subsequent declaration of the trial judge in his charge to the jury that they were not to infer guilt from suoli silence, could not cure the illegal reception of the testimony.
    The trial judge was as unable, as the appellate court is, to know wliat effect the unauthorized evidence produced on the mind of the jury.
    APPEAL from the Criminal District Court, Parish of Orleans. Roman, J.
    ilí. J. Chmnmgham, Attorney General, for the State, Appellee.

      W. L. Mvans, for Defendant and Appellant:
    The prisoner was on a railroad train, under arrest, hcmdeuffed and shackled, at a time when a conversation between two other men occurred in his x>resence; he remained silent. Bill of exceptions, II. pp. 24 to 27.
    Mere silence, while a party is wider aA'rest and in irons, affords no inference whatever of acquiescence in the statements of others made in his presence. Under such circumstances he is not called upon to contradict such statements. Such statements should not have gone to the jury over the timely objections of the prisoner. State vs. Diskin, 34 Ann. 921, 922; State vs. Munston, 35 Ann. 889 ; Com. vs. McDermott, 123 Mass. 440; Coni. vs. Kinney, 12 Met. 235 ; Com. vs. Walker, 13 Allen 570; Bob vs. State, 32 Ala. 560.
    The invariable rule in this State and in England is, that where inadmissible evidence has been allowed to go to the jury in a criminal case, over the prisoner’s objection, he is entitled to relief. Bog. vs. Gibson, 16 Cox C. C. (copied in full in the brief); State vs. Perry, 16 Ann. 444; State vs. Monie et al., 26 Ann. 513; State vs. Gruso, 28 Ann. 952; State vs, Gregory, 33 Ann. 743 ; State vs. Mullen, 33 Ann. 159; State vs. Ton Sachs, 30 Arm. 943. (It is contended that in every criminal case reported in the Louisiana Annuals— covering a period of more tlian/orfa/ years — a new trial was granted where it was made to appear that inadmissible evidence was admitted over objection.)

    The opinion of the trial judge upon/aefs which belong exclusively to the jury, cannot be considered by the Supreme Court. State vs. Crawford, 32 Ann. 527; State vs. Tompkins, 32 Ann. 623.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The Attorney General contends that this court cannot consider the merits of this ease for the double reason, that the motion of appeal was offered and allowed and the transcript filed too late.

The defendant was sentenced on May 31, 1887. The court then adjourned, and reopened only on September 1, following. On that day, the accused, through counsel, moved for an appeal, which was granted, returnable to this court at this place (Shreveport) within ten days, and the transcript of appeal was filed here on October 1. The case was tried in the parish of Orleans (First Judicial District).

The act of 1878—No. 30, p. 56—relative to appeals in criminal cases provides, section 1, that “the party desiring to appeal, shall file his motion, either verbally or in writing, in open court * * * in the courts of the First Judicial District, within ten days after the sentence shall have been passed.” (Sec. 1.)

It is therefore clear that, as between the day on which the sentence was passed and that on which the appeal was asked and granted, the court did not sit at all, it was physically impossible for the accused to have filed his motion of appeal m open court.

Had ten judicial days elapsed in the interval, quite a different case would have been presented, as the law prohibits, in negative terms, that appeals be granted after the time specified shall have elapsed. (Sec. 3.)

It is true that the law directs that appeals in such cases shall be made returnable within ten days after the granting of the order of appeal; but the statute clearly contemplates that this must be so, where this court may be in session on the return day. (Sec. 4.)

Now, this court could not be in session at this place at all in September, as, under the law, the term opens here in October.

The law does not require vain things. Of what good would it have been, either to the State or to the accused, that the transcript be filed here within the ten days following September 1.

The ruling in State vs. Madlar, 38 Ann. 390, has not the remotest application to the present one, for the obvious reason that there ten judicial days had expired before the motion of appeal had been made, and likewise after the return day, and here none at all had previously elapsed.

The motion to dismiss is denied.

On the Merits.

This case was once already before this court, and was remanded to be tried denovo, because of the illegal admission of a declaration, as part of the res gestae, which was not considered to be such. 39 Ann. 219.

On the new trial, the accused was convicted of manslaughter, and sentenced to fifteen years at hard labor.

On the present appeal he complains that incompetent testimony was received, which ought to have been rejected.

It appears from the bill of exception taken to the reception of the evidence, that a witness on the stand was allowed, over defendant’s timely objections, to state what an officer who had the accused in charge on his way from Shreveport to New Orleans, had told him touching the place and circumstances of the arrest, in presence of the prisoner, who was then under arrest, handcuffed and shackled, and who remained silent, although no one had told him so to be, and, he could have spoken had he chosen to do so, no one preventing him from speaking.

The district judge says, in the bill, that the evidence was admitted because no one prevented the prisoner speaking, and that the jury was instructed that the prisouer remaining silent was not to be construed as an admission of guilt.

We feel constrained, in justice to the sacred rights of the accused, to say that the testimony was inadmissible, not only because it was hearsay, and because the facts sought to be established could have been elicited directly from the officer in charge of the prisoner, and who was not heard; but also because the mere silence of the accused, which he was authorized to keep, could not have been proved, so as to have prejudiced him, under the circumstances. The subsequent declaration of the trial judge, in his charge to the jury, that the testimony objected to and received, would not be considered by them as an admission of guilt, could not cure and legalize the anterior illegal reception of the evidence. This statement, at best, was an implied instruction that this testimony might be good evidence for some other purpose ; but this was not correct.

The district judge further states, that the admission of the evidence could in no manner or form affect the rights of the defense, and was certainly no additional burden upon it, and that it was immaterial where the arrest had been effected, as it had already been proved that the prisoner had run away from New Orleans, after committing the crime for which he was tried, and was actually on the train, in charge of the Shreveport officer, who was conveying him.

We feel again constrained to differ from our learned.brother.

It was as impossible for him, as it was for us, to say what effect was produced on the jury by this testimony, which he seems to admit after all, was immaterial.

The law excludes hearsay testimony.

The object which the District Attorney had in view was probably to show that the accused was a fugitive from justice, ana from that fact induce the jury to infer a presumption of .guilt against him.

The fact of the arrest at a place other than that at which the offense was committed, and the statement of the place and circumstances under which it was effected in presence of the accused, 'who remained silent, possibly could have been established, with the information to the jury that, under the circumstances, no presumption of guilt was inferrable, leaving them, however, otherwise to appreciate the evidence; but this should have been done at the time of reception, and only by direct and proper testimony, and in no way by hearsay evidence.

The statements of the witness on the stand touching' what the officer in charge had told him relative to the place and circumstances of the arrest of the accused, in the latter’s presence while in actual custody, ought not to have been received over his seasonable objections, as they were either hearsay, or irrelevant, or both.

Even then, as the prisoner had the indisputable right to abstain from contradicting the witness, and to remain absolutely dumb, and as he could not be prejudiced by deducible impression from his silence, the admission of the testimony ought to have been coupled with the formal warning that guilt could not be inferred.

. Under the circumstances, the accused is entitled to a new trial. 2 Ann. 245; 31 Ann. 861; 34 Ann. 921; 35 Ann. 889; 16 Ann. 444; 26 Ann. 513; 28 Ann. 952; 30 Ann. 943; 32 Ann. 571; 33 Ann. 159 and 743; 38 Ann. 788, and 39 Ann. 219.

It is, therefore, ordered and decreed, that the verdict be set aside, and the judgment and sentence upon it reversed, and that this case be remanded for farther proceedings according to law.


author: Poché, J.

text:
    No. 204.
    The State of Louisiana vs. Andrew Jackson.
    In a criminal prosecution it is nob competent for the District Attorney to question a State witness as to the cause of his unfriendly feelings against the accused, which he has admitted on his cross-examination by the defence, without objection. The inquiry cannot be pressed further than the existence of the unfriendly feelings.
    The decision in State vs. Gregory, 33 Ann. 779, affirmed.
    APPEAL-from the Second District Court, Parish of Bossier. Drew, J.

      J. A. W. Lowry, District Attorney, and M. G. Mstner for the State, Appellee.

      Joannes Smith for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Convicted of arson, the defendant complains of an erroneous ruling of the trial judge, which is contained in a bill of exceptions. On cross-examination, a State witness, who is a brother of the prosecutor, was questioned by the defence as to the sta’e of his feelings toward the accused. His answer was that they were unfriendly.

On re-examination by tbe district attorney, tbe witness was asked to explain the cause of his unfriendly feelings to the accused, and tbe question was allowed over the objection of defendant’s counsel. The witness explained that his unfriendly feelings grew out of his belief that the accused was guilty of the charge for which he was on trial.

The point thus presented falls entirely under the ruling of this court in the ease of the State vs. Gregory, 33 Ann. 737. In that ease the court, dealing with a precisely similar question, said: “The sole object of it was to prove the fact or existence of the unfriendly feeling, and beyond this, neither the question nor the answer could legitimately have any bearing whatever on the question presented. If the witness did entertain such feeling, his credibility, under the law, was affected thereby, and it was a matter to be duly considered by the jury in weighing his testimony. If he entertained no such feeling, his credibility was unimpaired; and the inquiry should have ceased and the matter closed here, the end and object of the inquiry being fully accomplished.”

And we must note that the ruling thus made is not without precedent. It has been held that “ where the defence was permitted, without objection, to ask a witness if he was not prejudiced against the prisoner, and he has answered that he was, it was error for the court, against the objection of the defence, to draw from the witness a statement of the reasons why he was so prejudiced.” * * Waterman’s U. S. Criminal Digest, p. 169, § 404.

In the case at bar the question allowed was not only illegal and unwarranted, but it was manifestly intended to draw from the witness an answer inevitably injurious to the accused under the state of facts which had been elicited from the witness in his cross-examination. That a statement of a witness for the prosecution containing his opinion that the defendant was guilty as charged was at the same time damaging as well as injurious to the latter, is a proposition too plain and self-evident to need any support or argument. In a criminal trial the jury alone are empowered, under the law, to draw inferences or to form opinions from facts to the statement of whether witnesses, not experts, must be restricted in their testimony.

We are constrained to conclude and to hold that the accused in this case has not had a legal trial, and that he is entitled to relief at our hands.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled and reversed, that the verdict of the jury be set aside, and that this cause be remanded to the lower court for further proceedings according to law.


text:
    No. 214.
    The State of Louisiana vs. Columbus Evans.
    In a prosecution for shooting with intent to murder, though th eevidenco shows that it would have been murder had death ensued, that, in itself, will not be sufficient ground for the jury to infer the existence of the intention to murder. If the mortal blow is unlawful and malicious and death ensues, the perpetrator is guilty .of murder, although he did not intend to murder.
    A PPEAL from the Tenth District Court, Parish of Red River. iA Hall, J.

      M. J. Ounninghami, Attorney General, and J. O. Pugh, District Attorney, for the State, Appellee:
    1. In prosecution for shooting with intent to murder, where the evidence shows that it would have been murder, had death ensued, that, in itself, will be sufficient ground for the jury to infer the existence of the intention of murder. 'Waterman’s D., p. 52, No. 210; Bishop Grim. L., vol. 1, § 736.
    2. A conviction under sec. 791 of the Revised Statutes is responsive to a charge under sec. 790. State vs. Gilkie, 35 Ann. 53; 39 Ann. 203.
    3. A conviction of a less offence than that charged in the indictment, both being of the same generic class, is expressly authorized by our law. State vs. G-ilkie, 33 Ann. 53; State vs. EoKort, 23 A.nn. 326; State vs. Eord, 30 Ann. 313; 39 Ann. 203.

      Pgan & Pierson for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant was indicted under section 790, R. S-, for shooting with intent to murder while lying in wait.

The State subsequently abandoned that part of the indictment charging the accused with lying in wait, and the trial was had upon the charge of shooting with intent to murder.

The defendant was tried and convicted, and appeals from a sentence of five years’ imprisonment at hard labor.

We find in’the record two bills of exceptions.

.1. The first is to a charge of the trial judge to the jury, as follows : Where the evidence shows that it would have been murder if death had ensued, that, in itself, will he sufficient ground for the jury to infer the existence of the intention to murder.”

This charge was incorrect for the reasou that a party may be guilty of murder when there was no intention on his part to commit murder when the fatal blow was given or wound inflicted from which tine death ensued. This doctrine was clearly recognized by the present court in the case of the State vs. Walker, 37 Ann. 560, in these words (quoting):

“If a mortal blow is unlawful and malicious and death ensues, the perpetrator is guilty of murder, whether he intended or not to kill, as he is responsible for the effect of such blow though he did not intend to kill.” And among other authorities cited in that case in support of the principle referred to, is the following from Bishop:

“If a mortal blow is unlawful and malicious and death ensues, the perpetrator is guilty of murder ; whether he intended to kill or not, he is responsible for the effects of such wilful and malicious blow, although he did not intend to kill.” 2 Bishop Cr. L., § 679-689.

Roscoe, in his work on Criminal Evidence, after quoting an English statute making it a capital offence: “When, in the language of the statute, a party shall, by any means whatever, cause to any person any bodily injury, dangerous to life, with intent to commit murder,” thus proceeds to comment:

“Where a party was indicted under the above section for inflicting an injury dangerous to life, with intent to commit murder, Patterson, J., held that’the jury ought not to convict unless they were satisfied that the prisoner had in his mind a positive intention to murder, and that it was not sufficient that it would have been a case of murder, if death had ensued.” Roscoe, p. 782.

The Attorney General in his able argument admits that “as an abstract legal proposition ” this charge, without |the' qualification taken from the proffered special charge, may not have been a correct enunciation of the law, but that applied to this case he asserts it correct.

2. And this brings us to the consideration of this special charge, which forms the subject of the second bill of exception, above referred to.

This charge asked by the counsel for the accused was as follows:

It is not sufficient that the offence would have been murder had death ensued to bring it within the statute, the jury must be satisfied that the prisoner had a positive intention to commit murder.”

The judge refused the entire charge save the latter part of it, “that the jury must be satisfied that the prisoner had a positive intention to commit murder.”

The addition of these words to the original charge given did not, as contended, cure the defect or vice therein. Its force was left untouched. Its meaning was unchanged and unimpaired. Together they would in effect amount to this:

“The jury must be satisfied that the prisoner had a positive intention to commit murder; but if the evidence shows that it would have been murder if death had ensued, that, in itself, will be sufficient ground for the jury to infer the existence of the intention to murder.”

And as thus formulated, it is manifest that it could effect no modification of the original charge.

From the explanation given by the trial judge of his ruling in the bill of exceptions, he seemed to believe that his charge was proper in this case for the reason that the weapon used in this instance was a double-barreled shot gun, the use of which alone afforded indubitable proof of the murderous intent, and such is likewise the contention of the Attorney General. To this, reply is made by the counsel for the accused, that the double-barreled shot gun was shown to have been loaded with fine shot, that the wound inflicted was slight, and that the accused discharged only one barrel of the gun; all of which he contends negatives any intention of killing.

From an exhaustive consideration of the law bearing on this point, we are satisfied that the judge’s rulings were erroneous and to tho prejudice of the defendant.

This conclusion makes it unnecessary to consider the motion in arrest of judgment, which the record, also, contains.

It is therefore ordered, adjudged and decreed that the sentence be annulled and set aside, the verdict be quashed, and the cause remanded to the lower court to be proceeded with according to law.

Poché, J., takes no part, having not heard the argument.


text:
    No. 196.
    The State of Louisiana vs. John Pitts.
    Whore the record exhibits no showing whatever of the return and presentation of the indictment by tbe grand jury into opon court, tlie defect is fatal.
    APPEAL from the Seventh District Court, Parish of Catahoula. Lilis, J.

      Lucius Thompson, District Attorney, for the State, Appellee.

      J. N. Luce, for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

An assignment of errors is filed, one ground of which is absolutely fatal, viz : “ That the record does not show the finding of the indictment nor the return and presentation of the indictment by the grand jury in open court.”

The first entry on the minutes of the court begins : “ In this case, the accused being present in the court, was arraigned, pleaded not guilty, etc.”

Mr. Bishop says: When the grand jury is the body to take the first step in the court against the prisoner, it presents to the court a written accusation of crime ; and this presentment, after being duly’returned into court and made a part of its record, is called an indictment.” 1 Bishop Cr. Proc. § 36.

This illustrates the importance of the presentment into open court as essential to the very existence of an indictment in its consummated force and effect.

We have heretofore held that entire absence from the record of any showing of such return into open court is fatal. State vs. Shields, 33 Ann. 993; see also Brown vs. State, 9 Yerg. 198; Chappell vs. State, 8 Id. 166; Com. vs. Johnson, Thach. Cr. cases, 284; State vs. Cox, 6 Ired. 44; Nomague vs. People, Breese, 106.

This necessitates the remanding of the case.

It is, therefore, ordered and decreed, that the verdict and sentence be reversed and set aside, and that the case be remanded for further proceedings according to law.


author: Watkins, J.

text:
    No. 206.
    The State of Louisiana vs. Joseph Jean Pierre.
    One may be indicted by a name oilier than his true one, if he is sometimes called by it, answers to it when called, and makes an appearance in court demanding relief under it.
    The provisions of act 124 of 1874, making a distinction between grand and petit larceny do not conflict with, or repeal those of section 814 of the Revised Statutes, denouncing the crime of horse-stealing.
    An immaterial and impossible date in an indictment may be corrected at anytime; particu- • larly when the date is not of the essence of the offense charged.
    It is the right and the duty of judges to cause proper corrections to be made in the minutes of their courts, to the end that same may conform to the truth; especially when errors, or omissions are within their personal knowledge.
    It is not necessary that the minutes should show that the defendant was present at the timo a motion to quash is tried, nor when an indictment is amended in an immaterial matter.
    APPEAL from the Twenty-first District Court, Parish of St. Martin. Mouton, ,T.

      Q. R. Mouton, District Attorney, for the State, Appellee.

      Rdward Simon, for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

The defendant having been convicted of horse-stealing, and sentenced to two years’ imprisonment at hard labor, prosecutes this appeal; and upon sundry bills of exceptions taken to the rulings of the trial judge, overruling his motion to quash, application for a continuance, and motion in arrest of judgment, etc., he relies for relief.

I.

The motion to quash the indictment assigns:

1st. That his name is Louis Victor, and not Joseph Jean Pierre, as stated therein.

2d. That section 814 of the Revised Statutes, under which he is indicted, has been repealed by act 124 of 1874, which created the crimes of grand and petit larceny, and repeals all laws in conflict therewith.

On the trial of the first ground ef the motion the following facts¡ substantially, were elicited, viz :

That when called upon to be arraigned, the clerk addressed him as Joseph Jóan Piérre,. and asked him if that was his name, and he replied that it was not, and gave another. The court then asked him if he was not known, and sometimes called Joseph Jean Pierre, and he replied in the affirmative. He was thereupon arraigned, pleaded not guilty, and prayed for a trial by jury.

It also appears that subsequent to the defendant’s arrest under the indictment, he was incarcerated in jail, and petitioned the judge to fix the amount of his appearance bond, and it was accordingly done; and on his procuring the uecessary security he was released from custody. In that petition, order and bond he is styled Joseph Jean Pierre. The jailor states that when the bond was prepared he called the defendant by that name; that he answered, and, as that person, he signed, in his presence, the appearance bond, and was by him released from confinement.

There is no force in the objection.

Section 814 of the Revised Statutes denounces horse-stealing, and not larceny ; and it does not conflict with the provisions of act 124 of 1874, classifying the crime of larceny in two grades, as grand and petit larceny.

II.

Defendant made an affidavit for a continuance in order to obtain the testimony of an absent witness, which was refused; but we cannot examine the matter, as the defendant retáined no bill of exceptions to its refusal.

III.

Further objection was raised by the accused to the district attorney making a correction in the indictment of the date at which the crime was charged to have been committed — that is to say, by changing 1887 to 1886 — and on the day the cause was called for trial, and after the jury had been empaneled, but prior to the commencement of the trial.

The date laid in the indictment for the commission of the offense was the 22d of December, 1887 — a date which has not yet arrived, and hence an impossible one.

The record shows that the grand jury only returned the bill into court on the 8th of September, 1887, making the one given in the indictment a manifestly erroneous date. In the crime of horse-stealing the date at which it was committed is not of its essence ; and the correction was properly permitted.

IV.

The defendant moved the arrest of the judgment of the court on various grounds, viz:

1st. That the minutes of the court do not show that the indictment was found by the grand jury, or was returned into court while it was in session ; and if returned into court it was not returned and signed by the foreman of the grand jury in his official capacity.

2d. That the minutes do not show that the accused was present in court when the motion to quash was tried, and when the amendment to the indictment was offered and made, etc.

3d. That the indorsement of the foreman of the grand jury upon the bill of indictment is in every respect informal, and irregular, and deficient in law; and the finding was not recorded, etc.

From the bill of exceptions it appears, that the minutes did not show that the indictment that was returned into court was indorsed by the foreman of the grand jury ; and the judge permitted the district attorney to have them amended by the clerk instcmter by inserting the name and capacity of the foreman.

The endorsement on the bill is in strict keeping with the amendment; and the trial judge says, on assigning his reasons therefor: “ The court holds that it can, at any time, make necessary corrections of its minutes, especially, as in this case, the correction is made for the purpose of supplying a material omission, and correcting one within the personal knowledge of” himself; and that same was done for no other purpose than to make the minutes conform to the facts.

We think he had the undoubted right to permit the correction after the motion in arrest of judgment had been filed. To have permitted the defendant to take advantage of a Icnoivn and palpable error of this kind would have been wrong indeed. 31 Ann. 387, 406; 32 Ann. 558, 224.

It was not necessary that the defendant should have been present in court at the time the motion to quash was tried, or when the indictment was amended. It is only necessary that he should be present at all the important proceedings taken in the course of the trial and when the verdict of the jury is pronounced. State vs. Clark, 32 Ann. 558.

As we had occasion to observe previously, the endorsement of the foreman of the grand jury on the indictment was in good form and correct.

We find no error in the judgment and it is therefore affirmed.

Justice Poché not having been present at the trial takes no part in the opinion.


text:
    No. 198.
    The State of Louisiana vs. W. H. Bassenger.
    A motion for a continuance, based on an ajidaint which is insufficient, cannot be allowed.
    A motion to ■ compel the State to elect between two counts, which does not set forth the grounds upon which it rests, cannot be granted. The overruling of it cannot be reviewed on appeal, when the bill taken to the refusal of the court to order the election, does not set forth either those grounds or those on which the action of the trial judge was predicated. |¶1
    APPEAL from the Criminal District Court for the Parish of Orleans. JBalcer, J.

      M. J. Ounningham, Attorney General, for the State, Appellee.

      J. J. Foley for Defendant and Appellant.
   The opinion of the court was delivered by

Bermudez, C. J.

The defendant was prosecuted on two counts: 1st, stabbing with a dangerous weapon with intent to kill and murder j and 2d, inflicting with a dangerous weapon a wound less than mayhem.

Prom a conviction on the first count and a sentence of five years at hard labor, he appeals.

The record shows two grounds of complaint to the refusal of the trial judge: 1st, to continue the case; and 2d, to compel the State to elect.

The first bill of exception taken to the overruling of the motion to continue, owing to the absence of a witness, does not rest on solid foundation.

As reasons in support of his refusal the district judge says : that the accused knew of the fixing of his case for some time and though represented by counsel he has not had him summoned; that, not the least diligence has been used to procure the attendance of the witness; that neither the materiality of the evidence to be given, nor what the evidence. is, appears in the affidavit; that, although the affidavit be fatally defective, still, if any statement by counsel made it probable that this witness would be procured and that his testimony was material, he would have granted the continuance.

Further examination of the bill shows that the accused does not swear that, notwithstanding due diligence, he has failed to ascertain and does not know the place of residence of the witness. He might have known it well.

Under the circumstances, there being nothing to impugn the reasons assigned by the district judge which we find sustained by the record, we cannot say that he did not rule correctly.

The second bill is to the refusal of the trial judge to require the State to elect between the two counts.

The bill does not show on what grounds the motion to elect rests, or those on which it was refused.

The bill is informal and does not furnish data sufficient to authorize or justify an inquiry into the correctness of the ruling on the motion.

The rule for a new trial is based on four grounds:

It refers to the two refusals just considered, to the illegal admission of certain evidence to which no bill was taken and to the averment that the evidence did not warrant the verdict, a reason with which we are not concerned.

Judgment affirmed.


text:
    No. 213.
    The State of Louisiana vs. J. A. Waggoner et al.
    In all criminal trials the State is entitled to six peremptory challenges for each of the parties who are jointly on trial.
    The discretion of the trial judge to discharge jurors on the panel for reasons satisfactory to him will not he reviewed on appeal.
    In cases of conflicting statements of facts, in bills of exceptions, between judge and counsel, the Supreme Court will accept the statements of the judge; unless proper means are taken by counsel to vindicate their contention.
    Evidence taken in support of a motion for new trial will not be considered on appeal if it is not embodied in, or made part of reference of a bill of exceptions.
    An attack by the defense on the veracity or credibility of a State witness, may be legally met in rebuttal by the State by testimony to sustain the assailed witness.
    If the attempt is to show that the witness had previously made Statements or declarations contradictory to his testimony on the trial, it is competent for the State to show that soon after the occurrences which he relates, he had made to persons other than the impeaching witnesses, declarations in harmony with his testimony on the trial, although the particulars of his statements thus made are nót admissible.

      A PPEAL from the Second District Court, Parish of Bossier jTX Drew, J.

      J. A. W. Jjownj, District Attorney, and M. O. JSlstner for the State, Appellee.

      Watlcins <& WatJcins for Defendants and Appellants.
   The opinion of the court was delivered by

Poché, J.

This appeal is brought up by J. A. Waggoner from a conviction of murder without capital punishment, under an indictment charging him and four others with the commission of said crime.

His complaints are numerous and are embodied in eight bills of exception.

I.

In his first bill he charges error in the ruling of the judge who refused to restrict the State to six peremptory challenges. Under the law, Act No. 30 of 1878, the State was entitled to thirty peremptory challenges as there were five accused jointly charged and tried together. State vs. Green, 33 Ann. 1408.

II.

His second complaint is levelled at the discharge by the judge of one of the jurors of the panel without allowing him a chance to test the qualification of said juror.

We are informed by the judge that he discharged the juror, before the latter was called, for reasons satisfactory to himself. In so doing, he did not tresspass beyond the bounds of the discretion vested in him by law,"and we have neither the power nor the disposition to interfere with the proper exercise of his discretion. State vs. Somnier, 33 Ann. 237; State vs. Rountree, 32 Ann. 1144; State vs. Kane, 32 Ann. 999.

III.

The defendant also complains that he was illegally denied the right of questioning a State witness who had described the wounds of the deceased, as to the effect of the first wound received by the latter.

But the judge emphatically denies the statement of the facts made by counsel, and asserts that the question was allowed and that it was answered by the witness. With due deference to counsel, we must be guided by the bill which is the recital of the incident under the signature of the trial judge. We have had frequent occasions to announce and to follow this rule, which we feel compelled to adhere to, as long as proper means are not resorted to or provided for the purpose of adjusting differences of that nature which arise between judge and counsel.

IV.

Counsel urges that his client was injured by the following incident: A State witness, a brother of the deceased, was asked by the district attorney whether he made the affidavit against the accused after the first or second trip which he made to the place where the homicide had been committed ; to which he answered that he made the affidavit on the occasion of his second visit, and after seeing the widow and the young son of the deceased. The charge that the attempt through this question was to create the impression on the minds of the jury that the witness had acted on information received from the widow or her child, is not borne out by the facts disclosed in the bill, and we are at a loss to discover wherein the judge erred in his ruling.

V.

The complaint embodied in the fifth bill, and which is to the effect that the district attorney was illegally allowed to put leading questions to a State witness who had stated that she was afraid to testify in the cause, is flatly denied by the j udge, who asserts that no bill had been reserved on that matter during the trial.

VI.

Counsel also charges error in the ruling which allowed the district attorney to ask a witness where J. A. Waggoner was after the preliminary examination of his case. The judge says that the door to this inquiry had been opened by the accused himself, who had proved by witnesses that before the preliminary examination be had been allowed many liberties, and that he had not attempted to escape.

The evidence was properly allowed as rebuttal testimony; although the whole matter decidedly appears to be more trivial than important.

In justice to counsel, we must state that he has not dealt with that contention as at all serious.

VII.

The grounds which make up the seventh bill involve the only difficult question in the case.

They grow out of the following incident: The only direct testimony touching the homicide had been given by the son of the deceased, a boy of the age of ten or eleven years, who had testified that he had witnessed the commission of the deed, in broad daylight, and that he recognized J. A. Waggoner as one of the perpetrators of the same. As could be naturally expected, the defense resorted to all available means to impeach his credibility, to weaken his testimony, and destroy its effect on the minds of the jury. As one of such means, counsel for the accused asked, on cross-examination of the boy’s uncle, whether he had not stated to a certain person that the little boy had told him “ that he did not know who shot his father.”

It then appears that in rebuttal the State introduced as a witness the widow of the deceased, the mother of the boy, who was asked whether the boy had made any statement to her touching his knowledge of the homicide, to which she answered that a few minutes after the murder, the boy had told her that he knew who had killed his father.

The theory on which the defense resisted that evidence, is that it was hearsay, not part of the res gestee, and that it was not in rebuttal of any of its testimony previously introduced.

The evidence was not offered as part of the res gestee, but was merely intended to sustain the boy, whose credibility had been avowedly assailed by the defense. The contention that the evidence was irrelevant because the defense had not questioned the mother on the subject-matter is not tenable. The party who offers a witness, whose testimony is impeached by the other side, cannot be confined in his warranted effort to sustain his witness, within the narrow bounds of an examination of the witness whose testimony was sought to be used in the attack.

The question raised by the defense in the course of examination which it had followed, was the credibility vel non of the boy as a witness in the case, and the door which it had thus opened could not be closed against the State.

As a rule of evidence, the right of a party to uphold and sustain his witness whose veracity has been assailed, rests on sound principles of justice and fairness as well as of law, and it finds ample sanction in jurisprudence.

The object of the defense was to impair the force and effect of the boy’s testimony by showing that he.had previously denied any knowledge of the homicide, .and that his stateinents on the trial were the result either of corrupt influences or motives, or of malice towards the accused. It was, therefore, competent for the State to repel the attack by showing that his present statement was consistent with his previous declarations made at a time not suspicious. It is to be noted that the mother did not state the details of his declarations to her, but testified to the simple fact of his telling her that he knew who had shot his father.

Wharton in his valuable work on Criminal Evidence thus comments on this subject: ■ “ On the other hand, where the opposing case is that the witness testified under corrupt motives, or where the impeaching evidence goes to charge the witness with a recent fabrication of his testimony, it is but proper that such evidence be rebutted. Thus where on an indictment for perjury a witness for the prosecution swore that B (the defendant in a trial for arson) was not at the place of the burning at the time of the fire, but was confronted at his cross-examination by his testimony to the contrary on the arson trial, it was held that, as he had been discredited, he might be sustained by showing that he had made to C, immediately after the arson, a statement in harmony with that made by him on the perjury trial, though the particulars of the, statement were inadmissible.” Sec. 492.

In the same line of thought, this Court said in the case of Fahey, 35 Ann. 12: “The veracity of a leading State witness having been assailed by the defense, it was not only legal but incumbent on the part of the prosecution to attempt by testimony to maintain his good character.”

The same line of conduct was justified in the case of Robertson, 38 Ann. 618, in which the Court said: “ The object of calling this witness was not to furnish original or independent proof to support the charge itself, but the sole purpose and effect of such evidence was to sustain the testimony of the prosecution — the principal witness.” See also State vs. Melton, 37 Ann. 77; Phillips on Evidence, pp. 303, 304.

It is, therefore, safe to conclude that the bill discloses no error to the prejudice of accused.

VIII.

The last bill is levelled at the refusal of a new trial. The main grounds of the motion were the alleged misconduct of the jury, and of one of the counsel for the prosecution in his line of argument to the jury, but as the evidence taken in support of the motion has not been legally embodied in, or legally connected with the bill of exception, it cannot be considered by this Court.

This rule is too deeply imbedded in our jurisprudence to need any further comment at our hands at this late day. We leave the point with a simple reference to our recent utterances on the subject in the case of Deas, 38 Ann. 581.

The charge that the accused was not present, as far as the record , shows, during the hearing of a motion for a change of venue, that the jury made a change of foreman during their deliberations, are contained in the brief of counsel only, were not urged below and are not con tained in an assignment of errors; hence they cannot be considered.

A thorough review of the whole case leaves us convinced that th accused has had a just, fair and impartial trial, and that we are power less to relieve him.

Judgment affirmed.


text:
    No. 201.
    Alice B. McWilliams vs. J. G. McWilliams.
    In an action to annul a salo on tlie ground of lesion beyond moiety of property previously dc nated by tbe seller to the vendee, the plaintiff puts himself out of court by alleging tka the price mentioned in the act, though one-eleventli of the value of the real estate at th time, was not paid, and by not alleging error, imposition or fraud on the part of the ven doe in withholding the amount.
    In such cases, the parties must be left in the condition in which they voluntarily place< themselves at the date of the last conveyance.
    The transfer was not prohibited by law. The parties had a right to enter into the contrac by whatever name they may have designated it.
    The act was translative of real estate, and has served as a vehicle to pass the title from tin one to the other.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Leonard, Maries & Bruenn, and Land & Land, for Plaintiff and Appellant.

      Alexander & Blanchard, for Defendant and Appellee :
    •‘The real cause and consideration of a written contract involving the transfer of immovable property may be shown by parol evidence, although it appear that the real consideration was different from the one expressed in the contract.” 32 Ann. 432.
    “ The true cause of a contract may be shown by any legal evidence, oral or written, and the evidence adduced for that purpose never can be considered as contradicting the act.” 3 Ann. 230; 5 Ann. 741; 13 Ann. 25. 340; 15 Ann. 666 ; 26 Ann. 545; 33 Ann. 1033; 35 Ann. 560; 36 Ann. 549; 38 Ann. 736.
    The plaintiff having attacked the authentic act by charging in her petition that one of its recitals, viz: The payment of the money which was acknowledged to have been paid in cash, was untrue, was thereby estopped from objecting to evidence going to show the true nature and consideration of the act. 22 Ann. 286; 39 Ann. 575.
    In an action for the recision of a sale on the ground of lesion the evidence is not confined to the intrinsic valuó of the property, but is extended to the value of the plaintiff’s pretensions, the nature of his title, and the circumstances by which he is surrounded at the time of the sale, and all testimony, oral or written, on these points is admissible. 16 L. 380 ; IK. 125; 37 Ann. 22.
    “The action of recision for lesion was intended for the protection of those who have been driven by their necessities, or have through weakness or improvidence, suffered a loss of land of more than half its value.” 1 K. 125; 16 L. 380. jesion, however enormous it may be, lias no effect to invalidate the contracts of persons of fall age and under no incapacity, except certain designated contracts, of which this is not. one. 37 Ann. 554 ; O. C. 1863, 2230.
    Che plaintiff did not allege or prove that she was either driven by her necessities to make the sale, or made it through weakness or improvidence. Neither is it alleged or shown that her husband, who joined and authorized her in the act, was in necessitous circumstances, or was weak or improvident. On the contrary, the petition itself conclusively shows that the sale was not made for the purpose of obtaining money, for it specially alleges that no portion of the purported consideration was ever paid.
    The court is hound to give effect to the written contract of the parties by ascertaining what was their true intent. A contract is not the less valid though the true cause or consideration he not expressed in the act itself. C. C. 1894,1900.
    The plaintiff’s own allegations and the evidence in this reoord, show, beyond the shadow of a doubt, that the instrument which hears upon its face the form of a sale, was simply a revocation of a donation by consent of both partios, or a reconveyance and return by the donee of property which had previously been donated to her by her father.
    It lias been adopted as a general rule of law, that a sale without a price is a donation.” 13 h. 382.
    “Whether an act which is set up as a sale he good as such or not, yet it he clothed with all the formalities required by law to give force and effect to donations witervivors, it will be considered and held valid as a donation.” 10 L. 85 ; 12 Ann. 529, 6815 15 Ann. 566.
    A debt or obligation contracted or incurred during the existence of the community, for improvements made upon the separate property of the wife, is binding upon her. 29 Ann. 749 ; 34 Ann. 1163.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action to annul a sale of real estate by the plaintiff to the defendant on the ground of lesion beyond moiety, and to have herself decreed the owner of the property.

The defense is that the tranfer is valid and, if not, that the plaintiff should be condemned to pay for improvements on the land.

From an adverse judgment the plaintiff prosecutes this appeal.

It appears that on the 19th of July, 1883, the defendant, by notarial act, in consideration of natural love and affection, donated the property in question to the plaintiff, his daughter, and that she, on February 16, 1886, by a notarial act, on its face purporting to be a sale, transferred the same to him, apparently, for one thousand dollars.

It is claimed that the property was shown at that last date to be worth eleven times that sum ($11,000), and the contrary is not pretended.

The record contains as plaintiff’s evidence the acts of donation and sale, the value of the property at the date of sale. In it is found also testimony as regards the defendant in support of his claim for improvements.

The fundamental ground of the action is lesion, that is injury suffered in not receiving a full equivalent for the property. This remedy is founded on its being the effect of implied error or imposition. R. C. C. 1860.

The petition, however, sets forth the formal averment that the consideration of the sale never was paid.

Tt does not allege that the amount, in the bona fide intendment of the parties was to have been paid, or state any circumstance from which it can be inferred that the injury said to have been sustained is the result of any eiror or imposition. It does not even insinuate that on some fraudulent or unfair representation, on his part, the defendant has dishonestly withheld it.

In the face of the allegation of non-payment, and in the absence of any charge impugning tire good faith of the defendant, it must be deduced that the price mentioned in the deed, never was contemplated to be paid, and that the form of sale was preferred and adopted, as the best usual mode or channel for the gratuitous transmission in view of the property by the original donee to her donor.

If, then, no price was designed to be paid, and the purpose of the transaction was simply a transfer of the property back to the latter, how can it be consistently pressed that injury was sustained to any. extent, in consequence of the non-payment ?

It is clear that, but for the allegation of non-payment, the plaintiff should have recovered in the absence of counter legal evidence; but it is apparent that by this judicial admission, the plaintiff has closed her mouth against any complaint of injury sustained, and thus irrevocably put herself out of court.

The maxim : JBestitmtur tanquam Icesus fully applies.

The donation and the transfer of the property back must be considered under the light of, and together with, the averment in the petition.

Viewed as a whole, the plaintiff must be held, therefore, as having solemnly declared, in the most conclusive manner that she has, without any consideration, and in the form of a notarial act of sale, willfully, knowingly and gratuitously, conveyed to her father, the defendant, the property which he had some time previously donated to her.

She had a perfect right to do this, and having done it, she is concluded by her acts.

It is unnecessary to pass upon the nature and character of this conveyance, and say whether it be a donation, a cancellation or a revocation of the previous donation, or a retrocession, or any other act.

It is manifestly a title translative of real estate which has served as a vehicle to accomplish the purpose of the parties, as proved by their deed, which was, to pass the property from the plaintiff’s name to that of her father. Stat mole.

The district judge, iii an elaborate and considerate opinion,, has reached the conclusion that the plaintiff had no foundation to stand upon, and has left the parties in the condition in which they deliberately placed themselves on February 6, 1886.

We are not authorized to say that he has misconceived the facts and misapplied the law.

Judgment affirmed.

Justices Poche and Todd, not having heard the argument, take no part.


text:
    No. 216.
    The State of Louisiana vs. H. Hill et al.
    It is not every error in the rulings of a judge during the progress of the trial that will justify the setting aside of the verdict.
    To warrant such action on the part of the court it must be so grave an error as to induce tlio belief that but for its commission a verdict favorable to the occasion might have been returned.
    Where there is a disagreement between the trial judge and the counsel for the accused touching the facts connected with a ruling complained of, and the record does not enable the appellate court to ascertain the exact truth, the statement of the judge appearing in the bill of exceptions or otherwise of record should control the conclusion of the court on the contro* verted points.
    APPEAL from the Eleventh District Court, Parish of Natchitoches. Pierson, J.
    D. G. Scarborough District Attorney, for the State, Appellee.

      Jack <ft PismuTces for Defendants and Appellants.
   The opinion of the court was delivered by

Todd, J.

The defendants, H. Hill and Noah Cloud, charged with arson, the first as principal and the other as an accessory before the fact, were tried, convicted and sentenced to imprisonment at hard labor, the former for seven years and the latter for ten years.

Cloud alone has appealed.

He complains of two rulings of the trial judge on questions of evidence and presents two bills of exception.

1. The first bill was taken to the ruling of the court permitting a witness on the stand to be interrogated touching the relations existing between Hill and Cloud sometime previous to the commission of the offense, and the declaration of the former concerning the failure or insolvency of the latter.

It was competent to prove the relations between these parties and the only part of the interrogations that could under any circumstances be held objectionable, is that calling for the declarations of Hill in regard to Cloud’s failure.

The answer of the witness to this question, if answered at all, does not appear in the record and so we have no means of judging whether such answer was in any way prejudicial to the accused, or had any connection whatever with the crime charged. From the argument of the defendants’ counsel we may readily infer that there was no such connection, for he characterizes the question as wholly irrelevant and asks what possible bearing it could have had on the commission of the crime.

It is not enough that a question to a witness is objectionable, but to justify the disturbance of a verdict against a person for a grave offense ■ — such as arson — it must clearly appear that the question was intended to call out facts that were wholly inadmissible and that the answer to it would manifestly work to the defendants’ injury and prejudice. There is no such showing here, but on the contrary, so far as we can judge from the reasons of the judge given in the bill and the argument of counsel, the question was an idle one, wholly irrelevant and iu no way calculated to affect the accused.

We repeat that it is not every error committed by the trial judge during the progress of a prosecution that would authorize a setting aside of the verdict, but it must be an error of such grave import as to reasonably justify the belief that but for its commission a verdict favorable to the accused might have been returned. State vs. Brett, 6 Ann. 658; State vs. Garic, 35 Ann. 974.

2. The second bill was taken to the admission of certain declarations of Hill, the principal in the crime charged, evidently of a damaging character against the defendant Cloud.

From a reading of the bill it would seemingly appear that an objection was made to the admission of such declarations upon the ground that these declarations were made by Hill, co-conspirator with Cloud, after the commission of the offense and after the purpose of the conspiracy had been consummated and the conspiracy itself at an end.

This objection, if made, was a good one and required the rejection of the testimony offered; but we note in the bill of exceptions that the judge in explaining his ruling states positively and unequivocally that no such objection was made to the testimony and that if it had been made he would have sustained it.

It further appears that this disagreement between the judge and the counsel was caused by the fact that the bill of exception was not prepared and signed during the progress of the trial, and when objections were made to the evidence offered, but after the trial had ended and not then in open court, hut in chambers, a very irregular and objectionable practice, wbicb is well calculated to lead to such differences between the judge and counsel.

Eollowing established precedents, we are bound in such cases of disagreement to be governed by the statements of the judge where the record affords no couclusive proof on the subject, as in the instant case.

This disposes of the matters embraced in this appeal; and under tlie views expressed it is plain that there is no reason to disturb the verdict and sentence complained of.

Judgment affirmed.


text:
    No. 202.
    H. L. Fox & Co. vs. John R. Jones.
    Plaintiffs, having sold a locomotive to defendant at a price of $2000, subject to latter’s right to reject it after trial, defendant did reject it. Agreement then made that defendant should further use the locomotive for twelve days, at end of which he was either to deliver it or pay the price. He afterwards refused to do either aud held and used the locomotive. Plaintiffs claim damages for tortious conversion in the value of the locomotive ftxed at a higher amount than the price originally agreed. Case was tried "by jury on this issue, plaintiffs asserting value to be greater and defendant asserting it t-» to be less than the price. Jury found for greater sum. Held: that defendant having abandoned the sale and sought to reduce his liability below the price, cannot now set up tbe price as the measure of his debt. Had the jury found a less amount, the plea would not have been heard.
    Plaintiffs are not entitled to special damages for attorney’s fees in this suit and amendment to that effect refused.
    The verdict of the jury, being based on their estimate of conflicting evidence and being expressly approved by the judge, will not bo disturbed.
    APPEAL from tlie First District Court, Parish of Caddo. Hides, J. -

      Land & Land for Plaintiffs and Appellees.

      Wise <& Herndon for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

There is no dispute as to the following facts, viz: Plaintiffs sold to defendant a second-hand locomotive engine at the price of $2000, subject, however, to trial and rejection if not found satisfactory. The engine was shipped to and received by defendant, who, after trial, rejected it, but, at the same time, requested the use of it for twelve days longer as a compensation for delay, etc., binding himself to turn it over to plaintiffs at end of that term or to pay ■for it, which proposition was accepted. At the expiration of the term defendant refused either to surrender the locomotive or to pay for it'

After putting him in default, plaintiffs brought his action by an original petition asking judgment for the return of the locomotive with damages, or for the price. Subsequently and before answer they amended their petition, alleging the tortious conversion of the property and claiming damages in $2600 as the value of the engine and $250 as special damages for attorney’s fees in this suit.

Defendant, at fm-t, filed an answer of general denial, which he subsequently amended by an offer to return the locomotive and to pay a full'price for its use.

No exception or objection was made to the amended petition of plaintiffs, and the case was tried on the issue of tortious conversion and the measure of damages in the value of the property. On defendant’s prayer, the trial was before a jury. Evidence was taken pro and eon as to the value of the locomotive, plaintiffs’ witnesses estimating it as high as $2500, while defendant’s placed it as low as from $1000 to $1500. The jury found a verdict for $2,361.61, for which judgment was rendered.

Defendant assails the judgment on two grounds:

1st. He claims that he is bound only for the stipulated price of the engine, viz : $2000. We think it is too late for him to take this position. He voluntarily abandoned his conditional contract of sale, accepted the issue of conversion, and the value of the engine as the measure of damages. Had the jury followed the estimates of his witnesses and found a value less than the stipulated price, we should not have heard this plea from him, and we cannot listen to it now.

He aitacks the verdict as excessive. Ordinarily the price at which plaintiffs had sold the property might be taken as a binding valuation thereof by themselves. But reasons are given why the price stipulated turned out to be less than the value at the time of sale and why the value had subsequently advanced.

The evidence as to the value was conflicting; the fiuding of the jury is fully supported by plaintiffs’evidence to which the jury evidently gave credence, It is supported.by the approval of the judge expressed in his reasons for refusing the new trial. We find no grounds justifying us in disturbing it, and considering the illegal and highhanded course of defendant, we have no inclination to do so.

The judge did not err in charging the jury that the claim for attorney’s fees as special damages was untenable and the amendment in that respect asked by plaintiffs is denied. Chapuis vs. Waterman, 34 Ann. 58; Roos vs. Goldman, 36 Ann. 132; Chamberlain vs. Worrell, 38 Ann. 348.

Judgment affirmed.


text:
    No. 211.
    The State of Louisiana vs. Abram Carriés.
    . Notwithstanding the defendant’s challenges have been exhausted, at a time when one made by the counsel for the State is sustained, no ground of complaint is afforded the former The right is that of selection, and not that of rejection by tho State.
    APPEAL from the Eleventh District Court, Parish of Natchitoches. Pierson, J.

      D. C. Scarborough District Attorney, for the Stat e, Appellee.

      W. G. McDonald for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

The accused prosecutes this appeal from a conviction of murder, without capital punishment, and a sentence of lifetime imprisonment.

His sole complaint is that the trial judge incorrectly sustained a challenge for cause, made by the State’s counsel to the juror, G. D. Tessier, and excused him from service, notwithstanding his (defendant’s) challenges had, at the time, been exhausted and those of the State had not.

In State vs. Wyatt Crush, 38 Ann. 481, we said: “ It is no longer an open question in criminal jurisprudence that the rejecting of a juror by the trial judge, even if erroneous, affords of itself no legal ground of complaint to the accused.”

In State vs. Shields, 33 Ann. 1410, the same question was passed upon and the same doctrine was announced.

While it is true that the challenges of the defendant had been exhausted at the time, he was not compelled to accept an obnoxious juror, on account of the judge’s ruling. The juror was excused from service.

His right is confined to the selection of jurors. He has none to complain of the rejection of them by the State. State vs. Cruch, just cited; State vs. Durr, unreported. The ruling of the trial judge was correct.

Judgment affirmed.