text:
    No. 1228.
    Widow and Heirs of Wm. M. Scott vs. Wm. H. Scott, Administrator and Individually, et al.
    Where an adjudicated of property at succession sales makes use of a twelve months’ bond on which the deceased is security, in paying the price of adjudication, and, pursuant to an agreement with the holder of said bond, conveys a part of the property purchased to her as a consideration thereof, and thus secures the remainder o£ the property without consideration: Held, that the adjudicatce acquires no title adversely to the heirs of the deceased to the property.
    APPEAL from the Twenty-seventh District Court,Parish of Richland. Williams, J.

      J. W. Willis and Tlios. O. Benton for Plaintiffs and Appellees.

      Wells & Rhymes for Defendants and Appellants.
   The opinion of the court was delivered by

Watkins, J.

Petitioners, as widow and heirs of William M. Scott, ■deceased son of Susan A. Scott, also deceased, claim as heirs of their .■said grandmother to be the joint owners by inheritance of an undivided one-half interest in the plantation in Richland parish, known as the Home place, which contains 291 acres of valuable land, well improved and in a high state of cultivation, and the rental value of which is stated to be $500 per annum. They demand rents for several years and to be placed in possession of the property. The averments of their petition are that, during the lifetime of their father and grandmother, the latter consented to a mortgage on another plantation of hers, known as the Greek place, which contained 760 acres, as security for a debt of the former to H. F. Gwin & Oo. of $5000. That Miss Mary P. Kincaid, of the State of Mississippi, having acquired an interest in said note and mortgage, she brought suit against their father on the note and obtained personal judgment thereon, and, as against their grandmother, she obtained the recognition of and right to enforce her mortgage on the Turkey Greek plantation.

Under this judgment this plantation was seized and offered for sale, .and, failing to bring two-thirds of its appraisement at the cash offering, it was readvertised for sale for whatever it would bring on twelve months’ credit. At the second offering, the property was adjudicated to Wm. W. Scott, at the price of $1100, for which amount he executed a twelve months’ bond. At its maturity he made default, and same property was again seized under execution on the bond, and Miss Kincaid became the adjudieatee at the stated price of $800, which sum., less cost, was credited on the writ and twelve months’ bond-Soon after these occurrences Mrs. Susan A. Scott died, and the defendant, Wm. H. Scott, was appointed administrator of her succession and obtained an order of court to sell all the property thereof for the- purpose of paying its debts. At the sale, which took place on the 23d of March, 1884, Walter M. Scott, a brother of the administrator, became the adjudicatee of the E.ome plantation.

The further averment is made that their grandmother owed no-debts at the time of her death, and there was no necessity of an administration on her succession. That the adjudication to Walter M. Scott was a fraudulent simulation, he having paid no price therefor, and his ^brother, the administrator, having and retaining the actual physical possession of the property at the time and subsequently. That Miss Kincaid made a simulated and fictitious transfer to Walter M. Scott'of the balance which appeared to be due her on the twelve months’ bond, and he assumed to receipt and surrender-same to the administrator in satisfaction of his bid — -except for a small amount, which he did not pay. That, in point of fact, said twelve months’ bond had not been transferred to Walter M. Scott, but had been forgiven and released by Miss Kincaid, in consideration of her purchase of the Turkey Creek plantation for the small sum of $300, as stated.

There seems to be no serious controversy about the correctness of the plaintiffs’ statement of their case, except with regard to the reality and bona fides of the administrator’s adjudication of the-Home place to Walter M. Scott, the reality and validity of which the defendants affirm.

But a casual inspection of the record of the suit and judgment of Mary Kincaid against Mrs. Susan A. Scott et al. discloses that a personal judgment was rendered therein against the administrator of Warren M. Scott alone, and that judgment was rendered against Mrs. Susan A. Scott only to the extent of recognizing and enforcing the mortgage she executed on the Turkey Creek plantation as security for her son’s debt, and no personal judgment was rendered against her for the debt. She subsequently became the security of W. W. Scott on the twelve months’ bond for $1100. This was only a contract of suretyship, which represented a contingent liability on the-part of Mrs. Susan A. Scott, and entitled her to a previous discussion of the property of her principal on the bond. But it was treated by the administrator and all parties concerned as an unconditional obligation of hers, and made one of the grounds on which her succession was administered, and the basis fpr the order of sale of the property of her estate. The administrator’s prooes verbal of sale to Walter M. Seott shows that he paid the- amount of his bid by crediting the twelve months’ bond, but the proof shows that the bond had been transferred to him by Miss KJncaid three days before the sale was made to him, and that the consideration of the transfer was a conveyance to Miss Kincaid of a small tract of forty acres^of land which formed a part of the Turkey Creek place, and which had been accidentally omitted from the proees verbal Of adjudication to her when she purchased same. But Walter M. Scott only acquired this forty acres when the adjudication at succession sale was made to him. Thus we find that the matter stands this way: Miss Kincaid failed to get title to the whole of Turkey Creek place by forty acres; hence the succession sale was made of it and the Home place to Walter M. Scott. He made use of the twelve months’ bond of Miss Kincaid in making the acquisition; and when the property was adjudicated to him, he conveyed the forty acres to her, and retained the Home place. By this means Miss Kincaid perfected and completed her title to the Turkey Creek place, and W. M. Scott expected to obtain title to the Home place for nothing.

We are of opinion that the .plaintiffs have made out their case, and that the judgment in their favor for one undivided half interest in the property should be affirmed.

The plaintiffs, however, ask an amendment of the judgment in respect to rents of 1883, 1884, 1885 add 1886, insisting that the proof is just as clear in reference to the defendant’s occupancy of the property during those years as it is in regard to the subsequent years for which allowance was made. As we have already found that Wm. H. Scott was the acting and duly qualified administrator of Mrs. Susan A. Scott, and has been recognized as such by this court, and that he had an apparent right to sell the property under an order of court, we are of opinion that plaintiffs are entitled to recover rent from the 1st of March, 1884, atthe rate of one-half of $500 per annum, until the date of the delivery of possession.

Plaintiffs complain of the reservation in the judgment appealed from, allowing the defendants to institute suit for improvements • erected on the property during their occupancy of it.

In Heirs of Wood vs. Nicholls, 33 An. 744, a somewhat similar case, we held the defendant to have been a possessor in bad faith and liable for rents, but we said: “Defendant is undoubtedly entitled to necessary expenses for the preservation of the property under Art. 2314, O. 0., and to a proper adjustment of his claims for constructions ar-d improvements under Art. 508, O. O.

“We find not even plausibility in the contention that this article does not refer to possessors in bad faith.” P. 751.

We think that opinion furnishes a correct exposition of the rights of possessors in bad faith,,and that the judge a quo was correct in making the reserve he did.

The judgment should be amended so as to award plaintiffs rent from the 1st of March, 1884.

It is therefore ordered and decreed that the judgment appealed from be so amended as to allow plaintiffs rent at the rate of one-half the amount of $500 per annum from the 1st of March, 1884, until the date of defendants’ delivery of possession; and that, as thus amended, the same be affirmed, and that all costs be taxed against the defendants and appellants.


source: Caselaw Access Project

author: McEnery, • J.

license: Public Domain

text:
    No. 1229.
    Mrs. A. L. Saunders vs. Mrs. T. J. Mangham et al.
    In the absence oí a reeonventional demand, when the plaintiff fails to appear and prosecute his suit, either in person or by attorney, a judgment of non-suit only can be rendered against him.
    PPEAL from the Fifth District Court for the Parish of Ouachita. Richardson, J.

      E. T. Lamkin for Plaintiff and Appellant.
    Where there is no reeonventional demand, judgment, not final, but of non-suit only, can be rendered against plaintiff who fails to appear personally or by attorney the day fixed for trial. O. P. 536; 3 An. 660; 1 An. 176, 210, and 36 An. 288.
    Definite or final judgments are such as decide all the points in controversy between the parties. C. P. 539.

      Potts & Hudson andNewson <& Casern for Defendants and Appellees.
   The opinion of the court was delivered by

McEnery, • J.

Mrs. A. L. Saunders instituted suit against the defendants to rescind an act of compromise. She, in aid of her suit, prayed for and obtained an injunction against defendants, prohibiting and restraining them from selling or disposing of certain shares of stock in a corporation. Defendants filed a motion to dissolve the injunction.

The case was set for trial, and the counsel for plaintiff being absent, a motion for a continuance was made. It was denied and the case reftxed for trial. On this day, another motion was made for a continuance on account of the absence of the senior counsel at Washington on official business connected with his duties as representative in Congress, and the junior counsel being a member of the State Legislature, which would be in session in a couple of days. The application for a continuance was overruled, and the trial of the case ordered to be proceeded with. Whereupon, a written withdrawal was filed by plaintiff’s counsel. The court then had the plaintiff called by the sheriff from the court house door,' and, upon her failure to respond, the pleadings were read and a final judgment rendered against her, as follows:

“ By reason of the law and the evidence in this case being in favor' of defendants and against plaintiff, and by further reason of this case having been regularly set for trial, taken up and tried on the day fixed therefor, plaintiff’s attorneys, Messrs. O. J. and J. S. Boatner, having withdrawn from the case, and the. plaintiff having been three times called at the court house door to prosecute this suit, and having failed to appear, and upon trial the law and evidence being in favor of defendants, it is therefore ordered, adjudged and decreed that there be judgment in favor of the defendants, and against plaintiff, rejecting her demand and dissolving her injunction at plaintiff’s costs.”

The plaintiff has appealed. She urges that the pleadings did not authorize the judgment, as there was no reconventional demand, or claim for interest, or any claim for damages set up by the defendants, and therefore a judgment of non-suit only could have been rendered against her.

The defendants admit this position of the plaintiff, and suggest that this court render such a judgment as should have been rendered by the court a qua.

Art. 536, C. P., provides: “If, after the cause has been set down ■on the docket for trial, the plaintiff does not appear, either in person or by attorney, to plead his cause, on the day fixed for trial, the defendant may require that judgment of non-suit be rendered against such plaintiff, with costs.

“But such judgment can not be pleaded as res judicata, or in bar of another suit for the same cause of action, provided the plaintiff show that he has paid the costs of the first suit.”

Under the pleadings the defendants were entitled only to a judgment of non-suit. The only fact with which the court had to deal, was the non-appearance of the plaintiff, either in person, or by counsel to prosecute her suit.

There was no issue raised by the' defendants in the way of any reconventional demand, and there was no basis upon which to render a final judgment against the defendants. 3 An. 660; 4 An. 176.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the demand of plaintiff be dismissed as in case of non-suit.


author: Breaux, J.

text:
    No. 1230.
    Abraham Stein vs. Lazarus Brunner.
    A note provides that tlio debtor waives citation and confesses judgment for the amount it represents.
    It can bb eolle.etod in the manner consented to by the debtor. Courts have the power to carry out the agreement of the parties. Citation and notice are personal rights the debtor can waive.
    Having the right, he can not bo restricted in its exorcise to the time suit is instituted . oi' a petition is presented to the defendant or his attorney. If it exists at that time it exists prior.
    Tf there exist evil which should be remedied similar to that which prevailed prior to act adopted in 1801, preventing debtors from electing domicils to be sued, it is within legislative and not judicial authority to remedy.
    APPEAL from the Third Disrict Court, Parish of Union. Barksdale, J.

      Dawkins & Dawkins for Plaintiff and Appellant.

      Everett & Thomas for Defendant and Appellee:

      1. A judgment rendered without citation is an absolute nullity. 36 An. 16!); 38 An.
    ‘2. The only way that a party can waive citation is in writing, on the hack ot the original petition delivered to the clerk, that he acknowledges that the petition has been duly served on him. 0.1’., Art. 177.
    3. A waiver o£ citation and confession of judgment on tlienote is not such a waiver as is contemplated by law. G. 3?., Art. 177.
   The opinion oí the court was delivered by

Breaux, J.

The defendant made a note, payable one day after date to plaintiff or bearer, for the sum of $2147.

He, at the same time, waived citation and the legal delays, confessed judgment in favor of the legal holder for the amount and interest and for 10 per cent, interest, in addition, for attorney’s fee in case of suit to recover payment.

He also gave his written consent at the time to the proving of this confession before any court of competent jurisdiction.

Nearly five years after maturity plaintiff presented his petition to the court of defendant’s residence and prayed for the enforcement of this waiver and for judgment without citation.

A judgment of non-suit was rendered, from which plaintiff appeals.

In argument counsel representing the plaintiff contends that citation can be waived at the time and in the manner it was waived by the drawer of the note.

Oounsel for the defendant argues that a defendant can not waive a service of petition and citation in any other manner than that provided by .Article 177 of the Code of Practice.

Further, that the waiver of citation and confession of judgment on the note sued on is not such a waiver as is contemplated by law.

If the question presented is not exclusively personal, but one the community is interested in enforcing as a rule of right affecting the general interest; if it be one appertaining to a public cause, it can not be waived.

The interest of the community is an expression of general import. The community is a fictitious body composed of individual persons. The sum of the interest of its members constitutes the community. If the renunciation of laws is made in • derogation of this common interest — this sum of the interests — it is a wrong which should not receive judicial sanction.

If the individual member of the community chooses to renounce a personal right of property affecting no interest except his own, and not in violation of a law made prohibitory in its character in the interest of the body politic, or in the maintenance of public order or good morals, he alone is concerned.

We quote from Judge Cooley in his “ Treaties on Constitutional Limitations,” p. 220, 4 Ed.:

‘ ‘ Where a constitutional provision is designed for the protection solely of the property rights of the citizens, it is important for him to waive the protection, and to consent to such action as would be invalid if taken against his will.”

The statute must be read with an implied proviso that the party to ■be affected shall assent thereto. A party may consent to waive rights of property. The waiver in the instant case relates to rights appertaining to property.

Having laid down these propositions, it becomes necessary to determine whether the waiver of a citation and the confession of a judgment as made are illegal and null. We think not.

In abruptly reaching this conclusion we are not unmindful of the hardships that may be imposed on the confiding and too willing debtor, and we have felt impressed by the possibilities of imposition ably presented by defendant’s counsel.

But these individual considerations should not be of any avail in. determining a question general in its nature, and in regard to which legislative authority is silent.

Art. 178, C. P., if mandatory as contended, it is mandatory only in so far as the clerk is concerned.

The defendant can waive its provisions in so far as relates to his. personal rights.

If Art. 177, O. P., is mandatory to that officer, it is not as to a defendant who can waive the rights secured in his interest. '

They provide one of the forms whereby service may be waived. It is not sacramental or exclusive. These articles are directory.

In forced sales it is provided that appraisers shall be appointed.

The debtor, when his rights alone are affected, can waive their appointment. The right to waive is the rule, and is denied only in compliance with some provisions of law.

“In all cases in which it is not expressly or impliedly prohibited, parties can renounce what the law has established in their favor, when the renunciation does not affect the rights of others, and is not contrary to the public good,” the welfare of the whole body politic. Art. 11, O. O.

“In all covenants every one may renounce his own rights, and that which is for his advantage, provided that he does nothing contrary to equity, law and good manners, nor to the interest of third persons.” Domat, Yol. 1, p. 178.

“An individual is always at liberty to waive the benefit of laws made for his advantage.”

There are exceptions classed as follows by Toullier:

1. “Where the law itself has prohibited any deviation from its dispositions.

2. “Where it may be inferred from the dispositions or the motives of the law that it is absolutely prohibitory.

8. “Where the law has for its foundation some public or political cause, or the interest of a third person.”

The case at bar does not come within these exceptions.

The stipulation or pact de non alienando is but a waiver of citation or notice. .

It has become a part of our system of laws without special enactment.

It has received the sanction of our jurisprudence.

The third possessor can be divested of his ownership or possession without citation or notice.

“ The payee, may confess judgment for the maker.” Danielson Notes, 8 E., p. 66.

The question presented is not res nova. If it were it may be that our conclusions would be different.

In the case of Toledano vs. Relf, 7 An. 61, “the sale was by authentic act, which, among other things, provided that the act should import confession of judgment and that the vendor should have the right immediately, and before the delivery of the goods, to have judgment entered thereon for the amount of the notes, with interest, without any previous citation or notice; that no appeal should be taken from said judgment or any notice thereof to the defendants be required.

On a petition filed on the same day judgment was rendered.

The act on which judgment was rendered contained a power to the creditor to enter up formally a judgment in a court haying jurisdiction.

An authority the court held in that case which can be legally given to a plaintiff.

“ On the exhibition of an act of the kind, we think courts have the power to carry into effect the agreements of parties.”

During many years agreements were made electing domicil for the purpose of being sued.

This election was a personal right and could be waived.

In 1861 an act was adopted to invalidate such agreements, and a a general rule was laid down that a party must be sued at his domicil, and the fruitful canse of discussion and contention was brought to an end.

Courts have not the authority to remedy the practice complained of. The question is one of legislative policy, and must be left to that authority to remedy.

It is therefore adjudged and decreed, that the judgment of the lower court be and is hereby annulled, avoided and reversed.

By reason of the confession of judgment, and the law and the evidence being in favor of plaintiff, it is ordered, adjudged and decreed that he recover of the defendant the sum of $2147, with 8 per cent, per annum, interest on said sum from March 8, 1888, and for the further sum of 10 per cent, on said account, for attorney’s fee and for all costs.


author: Benner, J.

text:
    No. 1232.
    Police Jury of Lincoln Parish vs. William Harper.
    The case of State vs. Harper, recently decided, governs this ease.
    APPEAL from the Third District Oourt for the Parish of Lincoln Barksdale, J.

      E. H. McClendon, District Attorney, for Plaintiff and Appellant:
    1. When the defendantputs at issue, by demurrer, the legality or constitutionality of an ordinance of a municipal corporation, which imposes a fine for certain prohibited acts, the Supreme Oourt has jurisdiction of the appeal. 10 An. 310; Con., Art. 81. '
    2. The police juries have the power to regulate whiskey shops, and impose a fine on those who violate such regulations, and said fine can be recovered by civil suit. Ii. K. 2713, paragraphs 6 and 7; Act 76 of 1881; 86 An. 912; 10 An. 310.

      Potts & Hudson and F. W. Price for Defendant and Appellee.
   The opinion of the court was delivered by

Benner, J.

This suit arises under the same ordinance of the police jury of Lincoln parish which was recently considered by us in the case of the State vs. Harper, 42 An.

In our decision of that case, we stated the substance of the ordinance, which need not now be repeated. That case involved a criminal prosecution for violation of the ordinance, while this is a suit for the recovery of a fine or penalty for a like violation.

We held that the ordinance transcended the power delegated by the Legislature to the police jury, and was, therefore, illegal.

All the reasons assigned for quashing the criminal prosecution apply with equal force to fines and penalties imposed by the ordinance involved in this suit. The police jury had no more power to impose fines for violation of an illegal ordinance than to inflict criminal penalties for a like violation.

The judge a gao.rightly construed our opinion as declaring the ordinance to be ultra vires and illegal.

Judgment affirmed.


author: Watkins, J.

text:
    No. 1231.
    James Surget et al. vs. Isidore Newman.
    In applying tlie prescription of Act 105 of 1874"to an action to invalidate a title to-property purchased at tax sale, it is the province of this court to see that the sale was made under ami by virtue of some laxo of this State which authorized the sale proceedings; and in case it appears, from asimplo inspection of the title, that it ivas not so made, the bar of the statute will not he maintained.
    APPEAL from the Pourth District Court, Parish of Jackson. Bridger, J.

      Fred W. Priee and Boatner & Boatner for Plaintiffs and Appellants:
    1. On the trial of an exception of no cause of action coupled with a plea of prescription, where the court refuses to sever or to refer to the merits, the allegations of the petition are taken as true for the purposes of the trial of both exceptions, and the oxius probamcli is upon the party pleading' the exceptions.
    2. The term of prescription created by Act No. 105 of 1874 does not apply to sales absolutely null on the face of the deed, or made without authority of [law. 40 An. 453; 39 An. 409 ; 32 An. 912,228 ; 34 An. 407, 705; 35 An. 1086; Black on Tax Titles Secs. 124 to 127, 98,*99 and 100,' Cooley on Taxation, pp. 558 to 563, and 497, and notes; 34 An. 107, 407, 705; S3 An. 441; 32 An. 912.

      3. The sale of real property for taxes accrued since the adoption of the Constitution of 1879 must ho made to the party who will take the least quantity of land and pay the taxes, interest, cost and penalties. This is mandatory and must be strictly complied with under the pain of nullity; hence the sale of land for more than the taxes, interest, cost and penalties is absolutely null and void. Art. 210 Const. 1879; Black on Tax Titles, 121, 125, 126, 127, 98, 99, 100; 31 An. 661.
    1. An assessment of property to a party long since deceased or to his estate when the heirs had accepted his succession unconditionally is a radical defect which the three years’ prescription cannot cure; 30 An. 176, 871; 32 An. 913, 926, 52S; 31 An. 107,1215; 35An.lOS6; 33 An. 521, 1165; 10 An. 153, and authorities therein cited.

      White & Saunders and E. E. Kidd for Defendant and Appellee
    cited: 89 An. 410; 39 An. 1005; 69 Ala. 298; 68 Ala. 287; 9 La. 70; id. 164, 168.
   The opinion of the court was delivered by

Watkins, J.

Plaintiffs claim, in joint ownership, certain lands situated in the parish of Jackson, and to which they derived title by inheritance from their father, James Surget, who died in the State of Mississippi in 1856. They aver that they, as the sole heirs of the deceased, have been in possession of said lands ever since his death, they having unconditionally accepted his succession. They represent that the defendant claims said lands under and by virtue of a certain tax adjudication thereof to him, made and executed by the Tax Collector on the 24th of June, 1881, in purported satisfaction of the taxes of certain years therein indicated. That said purported conveyance to said Newman is absolutely null and void, and did not pass to him any title because of certain alleged patent, absolute nullities, which are discoverable on a simple inspection of the act.

The prayer of their petition is, that the sale to the defendant be declared absolutely null, and they be recognized as owners of the property. The proees verbal of the tax adjudication is annexed to and made a part of plaintiff’s petition.

To this action the defendant tendered a plea of no cause of action, and plead the prescription of three years under Sec. 5 of Act 105 of 1874.

On the trial this plea of prescription was sustained and suit dismissed at plaintiffs’ cost. From this judgment the plaintiffs have appealed.

From all that appears in the petition and tax title, it is manifest that there is no merit in the exception of no cause of action, and hence our opinion must turn upon the prescription of three years.

The language of the statute relied on is as follows, viz:

“Any action to invalidate the title to any property purchased at tax sale, under and by virtue of any law of this State, shall be prescribed by the lapse of three years from the date of such sale.” Evidently, then, the questions to be examined and determined, under this plea, are: first, whether this is an action to invalidate a title to property, purchased at- tax sale; second, was such sale made under and by virtue of any law of this State; third, from what time is the three years’ prescription to be computed.

The provisions of this statute have been frequently invoked as being applicable to suits seeking the revocation of tax sales, made under different laws of the State, but they have been applied in but two reported decisions of this court, and they are of recent date.

In one of thqse, Barrow vs. Wilson, 39 An. 410, we said:

“ It is a mistake to treat this statute as one intended to cure defects in tax titles. It is a statute of prescription, barring an action regardless of the merits or demerits of either title. * * * The statute does not concern itself with the strength of one title, or the weakness of another. ’ ’

In the more recent case of McDougal vs. Monlezun, 39 An. 1005, in which we treated of this plea of prescription, the plaintiff grounded his action in nullity on certain alleged “illegalities, irregularities and informalities” in the assessment of the property, and in the proceedings antecedent, and leading up to the tax sale,. Amongst them were enumerated: first, omission to list the property as belonging to a non-resident; second, omission to sell lands in fifty-acre lots, as required under- Oonstitution of 1868; third, insufficient and defective description of property; fourth, insufficiency and irregularity of advertisement of the property for sale. - But we held that as this statute was “not intended to cure defects in tax titles,” it must be considered “and held to be an impassable barrier, which eliminates the very right of the court to investigate or o.onsider the grounds of alleged nullity in the tax sale.”

These two opinions make it very plain that in giving effect to this prescription, we are not to be limited or restricted to such tax titles as shall contain no illegalities, irregularities, or informalities, either in the assessment, or sale proceedings; for such titles are good, and do not need the help of prescription. Hence, we say, that this statute bars the action to annul, regardless of the merits or demerits of the title; and “ eliminates the right of the court to investigate or consider such grounds of alleged nullity,” as those specified in the tax sale attacked by MeDougal in that case.

But, in the instant ease, plaintiffs’ contention is, that the bar of the statute does not apply, because — amongst other reasons assigned— there was no law of the State which authorized the sale made to the defendant, and that this is a badge of absolute, incurable nullity, which is apparent from an inspection of the act, and is specially-averred in their petition. Or that, in the sense of the second question to be determined under this statute, in applying the bar of prescription, the sale to the defendant does not affirmatively appear, by the recitals of the act, or from the face of the papers offered for our consideration on the trial of defendant’s plea, that the tax title assailed, was made under and by virtue of any law of this State; and,, hence, it is not covered by or included in the terms of the statute invoked.

The averment of the petition is that the sale purports to have been made on the 21st of May, 1881, in satisfaction of the taxes assessed against the estate of James Surget for the yeai’S 1878, 1874, 1875, 1876, 1877, 1878 and 1880, amounting in the aggregate to $1697.50; but, that if said sale was attempted to be made under the provisions of Act 107 of 1880, providing for the sale of property forfeited or adjudicated to the State, it was null because the property had neither been forfeited or adjudicated to the State, and could not be proceeded against under the terms of that act; and further, that said act only provides for the sale of property which had been forfeited or sold to' the State for taxes due and delinquent in the years antecedent to 1880, and that in this case the tax collector proceeded against the property for the collection of taxes due antecedent to 1880, and for those assessed for and due in the year 1880, confusedly and without distinction, and, therefore, the sale is null.

Reference to the tax title, which is annexed to and made a part of the petition, discloses no reference to any law under which it was made, and that fact can only be determined from other recitals thereof aind by deductions therefrom. It recites that the property was offered “ for sale at public auction * * * on the Í6th of April, 1881,” and there being no bid, the Tax Collector “then readvertised the said property in the same manner, to be sold to the last and highest bidder * * * on Saturday, May 21, 1881, for what said land would bring in cash; when on said 21st of May, 1881,” the defendant being the last and highest bidder, the same was adjudicated to him at the cash price of $2155.50 — a sum exceeding by nearly $500 the capital and interest of the taxes and the penalties due thereon.

At the date of this sale, May, 1881, there were only two statutes iu force, under the authority of which taxes prior to 1879 and those of 1880 could have been collected, and those were Acts 107 and 77 of 1880.

The latter is the general revenue law of that year, and, by its terms, the Tax Collector was restricted to making sale of “ the least quantity of the specific property of any debtor which any bidder will buy for the amount of, the ’taxes, interest, and costs due by said debtor.” It is obvious that the Tax Collector did not attempt to proceed under that Statute.

The former statute was doubtless enacted for the purpose of putting in force the provisions of Art. 1 of the ordinance for the relief of delinquent tax payers, but it evidently relates only to the sale of property forfeited, or sold to the State, for delinquent taxes and licenses. This appears from a casual examination of the title, as well as of the body of the act; and we have frequently so construed it. It is equally obvious that a statute which directs and requires a tax collector to sell property forfeited or sold to the State, only, does not confer upon that officer power or authority to sell property of a delinquent tax payer, in satisfaction of “taxes due the State.” It was this particular deficiency in the Act of 1880 which necessitated the passage of Act 98 of 1882, Sec. 1 of which required the Tax Collectors to advertise for sale property which had theretofore been forfeited to the State for unpaid taxes, property which had been sold to the State for unpaid taxes, and “property upon which any taxes (were) due to the State * * * prior to January 1,1880.” Therefore, if the Tax Collector did proceed under that law to enforce the ■collection of taxes due the State prior to the 1st of January, 1880, by James Surget’s estate, it can not be said of his adjudication that it is a “ title to * * * property purchased at tax sale under and by virtue of any law of this State,” in the sense of the Act of 1874. It is clear to our minds that in applying the bar of that statute to an “action to invalidate the title to property purchased at tax sale,” it is our province and duty to see that the sale was made under and by virtue of some law of the State which authorized the proceedings, and our conclusion is, that the title in question fails to disclose the existence of any statute authorizing such a sale, and therefore it can not be said to be a title to property purchased at tax sale under and by virtue of any law of this State, and the prescription invoked and sustained by the judge a quo is not available to the defendant, and should have been rejected by him.

Entertaining this view, it will be necessary for us to reverse the judgment appealed from, and remand the cause to the lower court.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed, and that the cause be remanded to the court a qua for further proceedings according to law and the views herein expressed, the defendant and appellee to pay costs of appeal, and those of the lower court to await final determination of the cause therein.


author: McEnery, J.

text:
    No. 1233.
    Parish of Ouachita vs. City of Monroe.
    Act Xo. 57 of 1876, which authorized the City of Monroe to pay one-fourth the expenses for certain purposes of the parish of Ouachita, can not be extended to any item of expense not contained in said act.
    The authorization of the city to pay one-fourth for repairs to public buildings can not be extended to cover the expense of the erection of new buildings.

      Richardson, J. PPEAL from the Fifth District Court, Parish of Ouachita.

      F. G. Hudson, District Attorney, for Plaintiff and Appellant.

      W. N. Potts for Defendant and Appellee:
    1. Municipal corporations have only such powers and duties as are conferred in their charters or necessarily result therefrom. Dillon, Yol. 1 (3d Ed.), pp. 115 and 118.
    2. Power to repair does not include a power to erect a new building. Dillon on Mun. Corp. (3d ICd.), See. ,140, p. 166; 17 X. Y. 449 ; 2 Cal. 289.
   The opinion of the court was delivered by

McEnery, J.

The Legislature, by Act No. 81 of 1878, exempted from all taxes and licenses levied by the parish of Ouachita from and after January 1, 1873, all real and personal property within the corporation of the Oity of Monroe and all persons, firms and corporations within said city limits.

By Act No. 57, approved March 21, 1876, the City of Monroe was required to pay one-fourth of all the expenses incurred and liquidated by the parish of Ouachita for drawing and summoning jurors, their mileage and per diem, the summoning of witnesses before grand juries, for the attendance of the sheriff on the several courts, for repairs on the public buildings, owned by the parish and situated within the corporate limits of the Oity of Monroe,for books for parish officers, for registration and election and for the salary of the District Attorney pro tern.

The act provided for the manner in which the account for expenses should be made out and presented to the City of Monroe and the manner of its payment by said city.

In pursuance of this act the parish of Ouachita presented an account for expenses to the Oity of Monroe for the sum of $2715.47. The account was approved, except the items of oil and coal for jail and court house, and the item for the cost of erecting and building a new jail for the parish, which was ordered by the police jury of the parish.

The parish of Ouachita brought this suit to secure the one-fourth of the account from the Oity of Monroe.

The facts, as admitted, are that the jail was built in 1888 by Pauly & Co. under a contract with the police jury of Ouachita parish. Its cost was $9466.60, one-fourth of which is claimed from the Oity of Monroe. Neither the Mayor or Oity Council of Monroe was consulted about said contract, and never consented to the same. The lot upon which the old jail stood was sold by the parish for $1000, and the materials of the old building were sold for $50, and the proceeds of both sales placed in the parish treasury, no part of which was credited to the Oity of Monroe. No part of the materials of the old jail were used in the new one, which was erected on a lot in a different square from the one on which the old jail was located.

There was an imperative necessity for the construction of a new jail.

Municipal corporations can exercise only such powers as are delegated to them by the Legislature in express terms or those which are necessarily implied from the powers so expressly granted, and those which are essential and indispensable to the declared objects and purposes of the corporation.

The Act No. 57 of 1876 authorized the City of Monroe to pay one-fourth of the expenses of the parish of Ouachita only for the following purposes: Drawing and summoning jurors, per diem and mileage of jurors, summoning witnesses before the grand jury, for the attendance of the Sheriff on the courts, for repairs to parish public buildings in the city limits, for books for parish officers, for registration and election, and for salary of the District Attorney pro tem.

In this enumeration of the expenses to be borne by the City of Monroe there is not included directly or by implication the liability of the City of Monroe for the items of coal and ice, nor is there included the authority for the City of Monroe to pay one-fourth the expenses of erecting public buildings. The authorization of the city by said act to pay one-fourth expenses for repairs can not be extended so as to make the city liable for one-fourth part of the cost of erecting the jail. It was a new building, on a distant lot from the one on which the old jail stood; not a part even of the material of the old jail was employed in its construction; and it would be a perversion of the meaning of the word repairs to so construe it that by implication or necessary inference it could be made to cover the erection of a new building, at a different locality, on an entirely different plan and of different materials. 1 Dillon Mun. Corporations, Sec. 140.

There was no express authority granted by the Legislature to the City of Monroe to pay one-fourth the expense for the erection of a jail in the City of Monroe by the parish of Ouachita, and the authority to incur this expense can not be inferred from any grant of power to the city in its charter, or in Act 57 of 1876; and the expense was not essential and indispensable to the declared objects and purposes of the municipality as the City of Monroe, as stated in the admissions, had provided herself with all necessary police buildings, including a police station and prison.

Judgment affirmed.


author: Fenner, J.

text:
    No. 1235
    Louisiana National Bank of New Orleans vs. H. B. Scott.
    When in a contract of partnership between a wife and a third person, it is stipulated that the wife’s husband shall represent the wife in all partnership business, and that his acts shall be binding on the firm “the same as if he were a member of said Arm,” such stipulation vests him with all the powers of a partner, and his signature of the Arm name to notes given in the business of the Ann is as binding as if signed by a partner.
    PPEAL from the Seventh District Oourt, Parish of Franklin. J Murphy, Judge ad hoc.

      A. W. Moore for'Plaintiff and Appellant.

      Gorham & Berry for Defendant and Appellee.
   The opinion of the court was delivered by

Fenner, J.

The plaintiff bank sues as holder and owner of two promissory notes purporting to be signed by the commercial firm of Earle & Scott, and claims judgment against the defendant as a member of said firm.

Scott filed answer averring that “ what purports to be the signature of the firm of Earle & Scott to the notes sued on was placed there by Henry T. Earle without the knowledge or consent of said firm or of defendant herein; and further, that said firm derived no benefit from said notes, and that said Earle was without any authority whatever to sign the firm name thereto, the same having been given by said Earle as accommodation paper.”

The firm of Earle & Scott was composed of Mrs. S. S. Earle and H. B. Scott, Mrs. Earle being the wife of Henry T. Earle.

The articles of partnership were in writing and contained the following clause: “It is further agreed that H. T. Earle, husband of Sarah S. Earle, shall represent-her in said partnership, and she does hereby constitute her said husband her agent to represent her in said commercial partnership, and he, the said H. T. Earle, is hereby acknowledged by said firm as such, to do and perform all acts pertaining to said agency, and his acts shall be recognized the same as if a member of said firm.”

It seems to us that this language expressly confers upon Earle all the powers of a partner and authorizes him to act as such and binds the firm to recognize his acts just as if he were a member of the firm. His signature of the firm name to these notes must, therefore, be given the same force and effect as if he had been a member of the firm.

The power of a commercial partner to bind his firm and his co-partner by notes given in the name of the firm, in matters relating to the business of the firm, does not admit of question. The party who takes such a note can not hold the firm if it has been given for matters not relating to the firm’s business; but if the note be negotiable and pass into the hands of bona fide third holders,- such, holders are not affected by want of authority or by the fact that it was given in a matter not relating to the firm’s business. Walworth vs. Henderson, 9 An. 339; Martin vs. Muncy, 40 An. 190.

Third persons are not bound by special limitations in the articles of partnership of which they have no notice. Gruner vs. Stucken, 39 An. 1076.

In this case it is not made very clearly to appear how the plaintiff acquired the notes, or whether the notes were given in matters relating to the business of the firm or enuring to its benefit, or whether plaintiff had notice of the limitations on the partner’s authority.

Indeed, the judge a quo restricted evidence on these points, and evidently proceeded on the assumption that the firm could, under no circumstances, be bound by the signature of H. T. Earle, considering that the articles of partnership conferred no such authority.

In this we think he erred, but considering the importance of the case and that there may be defences other than Earle’s lack of any authority whatever, and particularly considering that the defendant has not been represented on this appeal, we deem it best simply to reverse the judgment and remand the cause.

It is therefore adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that the case be remanded to the lower courts to be there proceeded with according to law and the views herein expressed.


text:
    No. 1236.
    Wm. T. Theobalds, Tax Collector, vs. Thomas N. Conner.
    1. Section 12 oí Act 101 oí 1886, the license law ol that year, which provides an annual license ior every individual carrying- on the business or profession of master builder, or mechanic who employs assistance, does not contravene the provisions ol Article 206 of the Constitution, which exempts from the payment of a license tax those who are engaged in mechanical pursuits.
    2. The law imposes a license on those persons who carry on any of the businesses, callings or professions therein enumerated, such as contractors, master builders, and the like; and the Constitution exempts those persons who aro engaged, in mechanical or manual labor.
    ^^PPEAL from the Third Ward Justice’s Court,• Parish of Ouachita.

      Thos. O. Benton for Plaintiff and Appellee.

      Boatner & Lamkin for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

The Tax Collector proceeded by rule on the defendant to compel him to show cause why he should not pay license for pursuing ! ‘ the business of contractor or mechanic employing assistance.” For answer to the rule, defendant denies owing the license demanded, and avers that so much of Sec. 12 of Act 101 of 1886, as authorizes the collection of annual license of $25 from every individual carrying on the business of master builder or “mechanic who employs assistance,” is null and void, because it is in contravention of the 206th Article of the Constitution, which exempts persons engaged “in mechanical pursuits” from the payment of such license.

The magistrate made the rule absolute, and condemned the defendant to pay the license demanded, and he has appealed.

The defendant’s counsel cite and rely upon our decision in City of New Orleans vs. Bayley, 35 An. 545, as being conclusive of the question in his favor.

In that case we had under consideration and construed the provisions of Sec. 12 of Act 119 of 1880, it being the license law of that year, enacted in pursuance of Arts. 206 and 207 of the Constitution, and also a city ordinance providing a similar license for the municipality. In the course of that opinion we said: “The defendant is a plasterer, works at his trade with his own hands, and, when executing a larger contract than he can conveniently handle himself, employs other plasterers to assist him.

“Manifestly he is engaged in a mechanical pursuit. The employment of assistance in his occupation does not alter the nature of his occupation. The Oonstitution exempted those engaged in mechanical pursuits from the payment of license upon their trades.” It then held that the license law of the State, and the license ordinance of the city, enacted in pursuance thereof, were both illegal, saying:

“The superior law had already prohibited that kind of business from beingtaxed, and therefore the Legislature was without authority to impose a tax upon it. Much more was the city without authority.”

Undoubtedly that opinion is correct, for Bayley was a plasterer and worked at his trade with his own harnds. When he had a larger contract than he could conveniently perform himself he employed other plasterers to assist him. Manifestly he was engaged in “ a mechanical pursuit,” such as is contemplated in the constitutional exemption.

But we feel quite sure that it was not the intention of the framers of the constitutional article to exempt persons carrying on the business in which the defendant is engaged; and we are equally certain that the Legislature does not so construe its provisions; for, notwithstanding the interpretation placed by this court upon the provisions of the License Act of 1880, the identical provisions thereof are found incorporated in the license law under consideration. The act declares ‘ ‘ that the annual license * * * for every individual or company carrying on the profession or business (of) agency for steamboats, draying, trucking, keeping cabs, carriages, hacks or horses for hire, undertaker, owner or lessees of toll bridges and master builders, stevedores and mechanics who employ assistance, shall be,” etc. (Italics ours.)

The statute places each and every one of these avocations or employments in the category of “ business or profession.” The article of the Oonstitution declares that “ all persons, associations of persons, and corporations pursuing any trade, profession, business' or calling may be rendered liable to such (license) tax, except clerks, laborers, clergymen, school teachers, those engaged in mechanical, agricultural, horticultural and mining pursuits,” etc. (Italics ours.).

This language justifies the distinction which the statute has made. It justifies a license tax being imposed on such persons as pursue any of the professions, businesses or callings which are enumerated therein, and the exemption from such tax of those who are engaged as clerks or laborers, and those engaged in mechanical pursuits, etc. So it may be that a master builder or contractor who employs workmen or assistants is liable to this license tax; and, at the same time, a clerk, laborer or one engaged in a mechanical or agricultural pursuit who employs other laborers or mechanics to assist him is exempt therefrom.

The question turns upon the character of the avocation or employment, and not upon the fact of assistants being employed.

A “mechanic,” according to Worcester, is “ one employed in mechanical or manual labor;” and “mechanical” is defined to be “ employment in manual labor.” Taking the phrase “ engaged in mechanical pursuits ” according to these definitions, and it is clear that the framers of the constitutional article intended to relieve from license those persons who are engaged from day to day in the performance of manual labor in mechanical or agricultural pursuits, and that the master builders and contractors who employ others to do the work which they merely superintend should, like other pro-, fessional men, pay the license tax.

It appears from the evidence in this case that the defendant is a brick mason, but has not followed the manual duties of that occupation for many years. That he makes contracts for the erection and construction of brick edifices, the building of which he supervises, while the mechanical labor of laying the bricks is performed by employés of his own, or those of the person for whom the contract is taken.

The defendant is also a manufacturer of brick, and he makes contracts to place them in the walls of buildings at a fixed price per thousand. In such case he employs brick layers to do the mechanical part of the work, and he superintends the construction of the building. Two of the witnesses state that the “defendant has been a contractor for the brick work of many buildings, constructed in the city of Monroe, during the past fifteen years,” and he “has not performed any regular manual labor, in laying bricks, in the erection of these buildings. He has contracted for the brick work, or supervised or superintended it, in all the cases referred to.”

It is shown that defendant has, “within the past fifteen years, occasionally laid bricks in order to exhibit his own skill or to direct others.”

The defendant is a contractor or master mechanic or builder, who employs other persons to do the work which he superintends. Unlike Bayley, he does not “work at his trade with his own hands,” nor does he engage others to assist him. Those whom he employs perform the work with their hands, and he superintends them, merely.

The statute which subjects persons pursuing such an avocation as defendant’s to a license tax is not unconstitutional, and he is liable for its payment.

Judgment affirmed.


author:
Breaux, J.
      McEnery, J.

text:
    No. 1234.
    Mrs. P. C. McFee vs. Vicksburg, Shreveport & Pacific Railroad Company.
    Railroad companies should provide safe road beds, the cross ties should bo sound and the rails strong and securely laid.
    An accident caused by negligence in not thus providing for the safety of their passengers and employes will subject them to damages.
    The question of punitive or exemplary damages need not be decided nor damages allowed, as there is not that element of malice or evil intent or oppression entering into and forming part of the act charged essential to decree such damages.
    APPEAL from the Fifth District Court, Parish of Ouachita. BAehardson, J.

      Potts & Hudson and Boatner & Lamkin for Plaintiff and Appellee:
    1. It is the duty of railroad companies to provide for their passengers and employes a saforoad bed, with sound cross ties and substantial rails well and safely fastened down, and to keep their track in good repair. And any neglect to do so renders them liable for all damages caused thereby. Wood on Railways, Vol. 2, pp. 1095, 1096 and 1097, and note and authorities cited; Vol. 3, p. 1466, 1469 and notes, 21 Amor. Rep. Lewis vs. Iron Mountain R. E. 389, and authorities there cited.
    2. The negligence of the roadmaster and inspector is the negligence of the company, and renders the company liable. Wood on Railways, Vol. 3, pp. 1471,1472, 1473; McKinney on Fellow-Servants, p. 78, 79 and authorities; Redfield on Railways (5th Ed.) 638, See. 7; 21 Aip. Rep. 391, and eases cited; 37 An. 635, 653; 2Am. Rep. 497; 100 U. S. 213, and eases cited.

      3. The roadmaster and inspector of roads is not a fellow-servant with the fireman. McKinney on Fellow-Servants, pp. 266, 269, 271, 294,295, and cases cited; 112 TJ. S. 377; 100 TJ. S. 213.
    4. If any injury result from the combined fault of the master and a fellow-servant tlio master is liable. McKinney on Fellow-Servants 84, and cases; 39 An. 1019, and cases; 106 U. S. 700.
    5. The actual damages to be repaired in this case consists:
    First — of the physical suffering of the deceased from the time of injury till liis death.
    Second — of the mental distress and agony of the deceased for the same period, and while contemplating and struggling with death.
    Third — the mental suffering of the plaintiff caused by contemplating the sudden and painful death of her only son, the loss of his society, his assistance, etc. Fourth — the value of the life of the deceased. 33 An. 8; 39 An. 14,19,963; 37 An. 653; ActXo. 71 of 1884; 17 An. 19; 18 An. 27; 33 An. 631; 38 An. 770; 40 An., Curley vs. 111. Gent. R. R., 2 Green, See. 267; 15 Fed. Rep. 373.
    6. In cases of gross negligence the law blends together the interest of society and of the aggrieved individual, and gives damages, not only to recompense the sufferer, but to punish the offender.
    These exemplary or punitive damages should be allowed in the present case. 34 An. 1108, Sheen vs. Pollard; 33 An. 393; 26 An. 313; 13 La. 110; Sedgwick, 36; 10 An. 88; 91U.S.492; 48N.TL 304; 57 Me. 202; 40 Miss. 395; 19 Ohio 162; 57 Penn. 339; 27 Md. 277; 24 Iowa 171; 40 Til. 218; 29 AVIs. 580.

      Stubbs & Bussell for Defendant and Appellant:
    1. AVliile it is the duty of a railroad company to use reasonable care in providing a safe road bed and suitable machinery, and in the selection of competent employes to maintain its road and operate it with material and machinery it has provided with the same reasonable care, it docs not warrant the competency of its equipment further than to exercise this reasonable care. Roror 1178, 1210, etc.; 41) An. 179.
    2. It does not warrant the completeness of its equipment further than to exercise reasonable care in providing and securing same and is not responsible for latent defects. “The tost of diligence is that of ordinary care.” Pierce 370, and notes; M. P. R. R. Co. vs. Lyde, 11 A. and Ifi. R. R. cases 188 (Tex.); Smith vs. Sellers, 40 An. 527; Ballou vs. Oh. & Mill. R. R. Go., 5 A. & TO. R. R. cases 480 (Minn.): Riley vs. State Line Steamship Co. 29 An. 791.
    3. The employe assumes the risks incident to a hazardous employment in the discharge of his duties, when not arising from the employer’s negligence. 35 An. 466; 38 An. 156; 40 An. 179, 527.
    4. If a defect in machinery or road exists and is well known to the employe and he continues to use it without complaint he takes the risk incident thereto. Rorer 1197, 1198; AVilson vs. AVinona & St. P. R. R. Co., 31 A. and 10. R. R. cases 244; Hough vs. R. R., 100 TJ. S. 213; Tuttle vs. Detroit, etc., R’y, 122 U. S. 189. *
   The opinion of the court was delivered by

Breaux, J.

This is a suit brought by plaintiff to recover of the defendant the sum of fifty thousand dollars for the loss of her son, George McFee, who Avas killed while in the service of the defendant. company as fireman on one of its engines, on the 9th of September, 1889, in a wreck of the railroad of the company.

The amount is alleged as due as follows: for damages in the physical and mental torture endured by him from the burns and wounds which caused his death, and the apprehension of certain death which awaited him, the sum of §15,000; for damages suffered in the loss of the society and support of her son the sum of §15,000, and she, in addition, alleges that she has suffered exemplary damages in the sum of §20,000, resulting from the wilful and criminal negligence of the defendant company in running its trains over an unsafe and dangerous track, the necessary repairs to which were delayed, although the dangerous condition and consequent peril to the safety and lives of its employés and the public were well known to the managers of the company.

It is also alleged that the disaster which resulted in the death of plaintiff’s only son was caused by deficient and insecure rails and rotten cross ties, which were totally unfit for the service required and the uses to which they were put. That the rails were greatly worn by age and use, and of a type and material long since out of use.

That the cross ties were worthless and unfit to bear the heavy weight of the ponderous engines and cars.

That the condition of the track, rails and ties was well known to the defendant, which is guilty of gross and criminal negligence in failing to repair and put same in safe condition for traffic and travel.

That a parsimonious policy was pursued; as a result the repair force was reduced to a number totally insufficient. ¡¡’ * -Y * * * * *

The defendant company, on its part, denies any fault or negligence, alleges that the employés were competent, skilled and were supplied with necessary material to keep the track in good order, and if there was any defect it was latent.

That if there was any responsibility it rested with the co-employés of the deceased.

If there was any defect the deceased was aware of the condition of the track, having passed daily over it for months.

The jury found a verdict for the plaintiff for actual damages to the amount of §7500, and for punitive damages in the amount of §5000.

The testimony is quite conflicting.

There are not many undisputed facts in the case. It is not contested that the deceased was the only son of the plaintiff, and that he was 22 years of age; that he had been an employé of the defendant as a fireman about one year.

These are about the only facts in regard to which there is no disagreement. A number of witnesses were examined on the part of plaintiff.

Some of these witnesses were present when the accident occurred; others testify as to the condition of the road, examined at other times.

Several of the witnesses testify that deceased lived six or seven hours after his injuries, conscious most of the time, and suffering excruciating pain and intense agonies.

He died from the effect of the injuries received in the wreck at the time alleged. He was scalded to death.

With reference to the cause of the accident, the witnesses for the plaintiff do not disagree in anything material.

They testify that the ties were not sound. The iron rails were not securely fastened to the ties. There were low joints connecting rails; high centers and no ballast. The ties were so broken and decayed that it was possible to break them with one’s hand.

It is stated further that the average life of a steel rail is about ten years, and of art oak tie in alluvial sections of country four or five years on a road on which there is ordinary wear by passenger and freight trains. That the rails and ties have not been renewed since great many years. The road was not in perfect alignment in the mile sixteen, in which the accident occurred. It was not safe to run a train over mile sixteen at the rate of fifteen miles an hour. That the old style iron rails used have been done away with long since. That the modern and safer appliances to secure the rails in position had not been procured. That the cars ran entirely out of line immediately in front and immediately in the rear of the place where the accident happened.

We do not think it necessary to further summarize the testimony •of plaintiff’s witnesses on this line. Suffice it to say that they agree in stating that the railroad was not at all in good condition. í¡í * * 5¡« * if* *

The witnesses for the defendant (employés of the company) do not entirely agree in their statements as to the condition of the road and as to the immediate cause of the accident. They state that the company furnished necessary materials to repair and maintain the road. That it was generally in a fair condition, safe for all trains. That the cross ties were not so decayed as to make traveling on the road unsafe.

Some of the witnesses testify that there was a cross tie decayed— a mere shell — at the place of the derailment. A few of the witnesses testify that none of the ties were in such condition as to make it necessary to take them out, except at the place of the wreck.

With reference to the direct or immediate cause of the accident there does not seem to be absolute certainty, or, at any rate, agreement in statement of a sufficient number of witnesses to make the cause evident — that is, as to whether it was owing to a defective joint fastening or cross tie or rail. Some of plaintiff’s witnesses, who testify on the subject, state that the derailment was caused by decayed ties giving way under the rails, throwing the engine off the track.

The supervisor of the road, testifying as a witness for the defendant, states that there was a decayed tie under the joint where the rails are connected and fastened; the rail had slipped a little. The flange of the wheel mounted the end of a rail and ran about twenty-four feet on its top before leaving it.

He testifies further:

Q. “ What was the condition of the tie upon which that chair was placed?

A. “ The inside of the tie was rotten. The outside appeared to be sound, but was cracked right under the rail. I kicked it off where the engine mounted. It was perfectly rotten. The shell was thin, in some places a half inch, and in some places thicker, and appeared to be sound. To the eye it appeared to be sound until I kicked it off..

Q,. “What was the cause of the bad connection there?

A. “It was caused by the spikes not holding. That shell was loose' and would not hold the spikes. The spikes going into the rotten tie would not hold.”

Other witnesses have testified to the same effect. X * * * * * * *

The record discloses that the road was being repaired at the time of the accident. That the old was being replaced by new rails.

The train starter testifies that during the year ending October 1, 1889, more than 1501 trains ran over mile sixteen.

In answer to a motion to produce it, the defendant company brought into court the “ Oonductor’s Accident Report.” From it we extract the following:

“ Personal Injury. — Name, George McFee; age, 25 years; occupation, fireman; residence, Monroe.

Q. “ Married or single?

A. “ Single.

Q. “ Had he children?

A. “None.

Q. “ Extent of injuries?

A. “ Badly scalded, causing death.

Q. “ Was injury caused by carelessness of the individual? If so, in what respect?

A. “No.

Q. ‘ ‘ Was injury caused by carelessness of any employé of the-company? Was injury caused by any defect in roadway, track, bridges, machinery, rolling stock or equipment of any kind? If so, describe nature of said defect fully.

A. “ Bad track, rotten cross ties and chair off rail.” [A chair is the fastening on either side of each end of the rail.]

An analysis of the testimony has resulted in convincing us that the answer in the “ Oonductor’s Accident Report ” is correct. He was in a position to know. His record was made at the time. It is corroborated as to its correctness by a decided preponderance of the testimony.

It devolves on railroad companies to maintain a safe road bed, undecayed cross ties, and to see that the rails are properly adjusted and in proper position.

The evidence further discloses that George McFee, the deceased, contributed something to the support of his family at different times. His mother,.the plaintiff, is a widow, and has two daughters. The-youngest is about 16 years of age. At times, when in Monroe, the deceased resided at his mother’s home. She has property of no great value, and is in debt. She owns her dwelling house, and collects small rents.

This case, in so far as relates to the condition of defendant’s railroad, and the accident which caused the damages, is similar in many respects to the case of Rutherford vs. Shreveport & H. R. Co., 41 An. 793.

In that case it was held that there was negligence on the part of the defendant company, and damages were allowed for the injuries received, the sufferings and the loss.

The duty now devolves upon us of fixing the amount of damage. It is a responsibility we meet with concern and not without solicitude.

If we were to consider only the excruciating pain, the agony suffered from the time of the injury until the death, the mental distress of the deceased while struggling with death, the great suffering of the mother in parting from her only son, the affliction the sad event memory unwillingly and mournfully recalls, and attribute these to wilful and outrageous negligence, the amount of our decree would be a very large amount.

While there must be compensatory damages allowed, it must not be forgotten that defendant’s employés, although negligent, never for an instant realized the possibility of an accident to one against whom they did not bear the least ill will.

There was too much delay in making repairs, an excess of economy, error of judgment; but these are no acts of malicious or outrageous negligence.

From the case of Peyton vs. Texas & P. R. Co., 41, we quote: “A review of our reports in similar cases points to only two occasions on which this court has allowed damages in excess of $10,000 for personal injuries. Among the cases we find an allowance of $7000 for ■an accident whereby the head of a large family lost his life — their •only support; and the allowance of $5000 in another, and $3000 in •another case. We find that the courts of other States have allowed less.”

In the case of Poirier vs. Carroll, 35 An. 708, the court held: “The verdict of the jury was for $12,000. We think it is excessive, and should be reduced. The suit is not nor could it be brought for damages sustained in consequence of the death of Poirier, but for the suffering and pain which he endured from the time of the explosion to that of his death — a period of some-eighteen hours; during part of which he was apparently insensible or unconscious. Whatever the endurance was, his widow and minors can not secure heavier damages than he would have been entitled to demand and receive had he survived.”

“ In the case of Vredenburg, in which the unfortunate victim had been sprung upon by a ferocious bear which lacerated his flesh, and he suffered tortures ending after twenty-eight days, the jury had allowed §15,000. Their verdict was reduced to $7500. We do not think that under the circumstances of the ease, the suffering not having been longer than twenty-four hours, the plaintiff should recover more than §2500.” * :M :¡: * * * *

Having considered the jurisprudence on the subject fixing the amount in similar cases at considerably less than we allow in our decree, and giving due weight to the verdict of the jury, to which we attach importance, although we can not agree with its finding, we fix the compensatory damages at §6000.

The object is not benefit. We think this amount secures justice. We will not particularize the damages, and we will not dissect the purest sentiments and the kindest impulses to establish how much is allowed for each separate item of suffering.

The facts have been carefully examined; our conclusions have been reached, and the amount fixed after close study, deliberation and consultation.

The reasoning which led to the conclusion just expressed precludes the possibility of condemning the defendant to pay exemplary damages. If such damages are allowable as such, at all, under our system, they are allowable only when an element of malice or evil intent or oppression enters into and forms part "of the act.

This, the line of reasoning followed by us has already negatived.

It is therefore ordered, adjudged and decreed that the verdict and judgment appealed from be amended by deducting therefrom the sum of §5000 allowed for punitive or exemplary damages; that the amount allowed for actual or compensatory damages be reduced from §7500 to $6000, and that as thus amended the judgment is affirmed with interest at legal rates from judicial demand, in the amount allowed, defendant and appellant to pay the costs of the lower court, plaintiff and appellee the costs of appeal.

McEnery, J.

f concur in'the principles announced in the decree in this case, but .reluctantly differ in opinion from the majority of the court in the estimation of actual or compensatory damages.

I am of the opinion that in this respect the judgment appealed from should be affirmed. Carly vs. Railroad, 40 An. 810.


author: Bermudez, O. J.

text:
    No. 1357.
    Louis Desmarais vs. Board of Police of Opelousas et als.
    On proper showing an appellant will ho allowed to perfect a transcript o£ appeal, even alter the argument has been gone into.
    The case presents the same issues as those determined in 41 An. 697.
    APPEAL from First Justice of the Peace, First Ward, Parish of St. Landry. Brooks, J.

      Kennett Baillio for Plaintiff and Appellee:
    Motion to Dissiiss.
    1. A certificate which does not certify that the transcript includes all the proceedings, evidence, and testimony is defective. 10 M. 670 ; 8 L. 295, 446, 454 ; 2 N. S. 67; 7 L. 337; 14 L. 265; 171.. 27; 1 All. ISO; 3 All. 592; UAn.644; 4 An. 487; 10 An. 180; 11 An. 604; 12 An. 082.
    2. AVhoro the appeal from the judgment oí a magistrate is not taken in tlie presence. of the pariie», and no prayer is made for citation of appellee, and he is not cited, the appeal will be dismissed. C. I*. 10 L. 214; 16 L. 50; 0 An. 110; 10 An. fi.AO.
    3. A party is not a competent surety on an appeal bond given by him in a representative capacity. 2 X. ¡4. 572; 2 K. 449.
    ON Tim MEMTS.
    4. AYhero a special tax is levied under Article 209, Constitution of 1879, the ordinance must not precede but must follow the vote. Art. 209.
    5. Municipal corporations can only tax in such manner as the Legislature has seen proper to permit. 33 An. 1179.
    6. The Police Juries of the several parishes are hound to provide suitable court houses for the courts. R. S. 2746.
    7. Municipal corporations can only tax for municipal purposes. Art. 202, Constitution of 1879.
    8. Special taxes for improvements under Article 242, Constitution of 1879 can not exceed 5 mills por annum. Art. 242, Constitution of 1879.
    9. Ordinary taxation for parochial purposes can not exceed 10 mills per annum. Art. 209.
    10. No estoppel can exist when there Is error.

      W. 8. Frazee for Defendants and Appellants.
   On Motion to Dismiss.

The opinion of the court was delivered by

Bermudez, O. J.

The plaintiff and appellee charges that the appellant having, in May, 1889, obtained and perfected an appeal returnable to this court at its July term following at Opelousas, and having failed to file the transcript seasonably, has abandoned the same, and that the transcript having been filed at the present July term, 1890, the case must be stricken from the docket, and he moves accordingly.

On the other hand, the defendant and appellant answers the charge, saying that the motion, order and bond to which reference is made, and which are in the transcript, apparently substantiate the charge; that the truth is that the same were inserted in the transcript in error by tbe justice who prepared and certified to its entire correctness, but who failed to copy in place the proper petition and order filed by the defendant in March, 1890, and the bond furnished on the same day, within twelve months from the signature of the judgment. Counsel for appellant makes oath that the.appellant discovered the alleged error since the motion was filed, and that it occurred by no fault of the appellant. Prayer was accordingly made for authority to supplement the transcript so as to correct the error thus committed.

The motion to dismiss and the prayer to supplement having been filed, the former on the day of trial and the latter as soon as the revelation had .been made, but within the three judicial days following the opening of the term of the court at this place, and the certificate attached to the transcript being full and such as the appellant could have taken as truthful, the appellant was permitted to take steps to perfect the transcript. 89 An. 781.

He has done so by providing a certified copy of the proper petition of appeal and order thereon, as well as of the bond furnished, all filed fully within the twelve months following the judgment. (O. P. 1138.)

The deficiency charged was therefore corrected.

The other objections, urged by the appellee since the transcript was thus completed, have no merit.

The motion to dismiss is therefore overruled.

On the Merits.

This suit presents issues similar to those in the case of Andrus vs. Board, 41 An. 697.

For the reasons there assigned, it is ordered and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now decreed that there be judgment in favor of the defendant, dissolving the injunction and rejecting plaintiff’s demand at his cost in both courts.


text:
    No. 1358.
    Laurent Dupre vs. Board of Police of Opelousas et als.
    A PPBAL from First Justice of the Peace, First Ward, Parish of St.. Landry. Brooks, J.

      Kennett Baillio and Laurent Dupré for Plaintiff and Appellee.

      W. S. Frazee for Defendants and Appellants.
   The opinion of the court was delivered by

Bermudez, O. J.

For the reasons assigned in the opinion just delivered in the case of Desmarais vs. Board, No. 1857, in 41 An. 697, it is ordered that the motion to dismiss be overruled, and, on the merits, it is ordered and decreed that the judgment appealed from be annulled, avoided and reversed and that there now be judgment in favor of the defendant, dissolving the injunction and rejecting plaintiff’s demand at his cost in both courts.


text:
    No. 1388.
    Mrs. L. J. Dupre vs. Board of Police of Opelousas et als.
    A tax payer who petitions for the passage of an ordinance levying a special tax; who has so acted in advancement of his own interest, and who has secured advantage from the passage of the ordinance, upon which other parties have acted, is estopped from setting up the illegality and unconstitutionality of the tax as a defence against paying it.
    APPEAL from First Justice of the Peace, First Ward, Parish of St. Landry. Brooks, J.

      Kennett Bwillio and Laurent Dupré for Plaintiff and Appellee.

      W. 8. Frazee for Defendant and Appellant.
   On Motion to Dismiss.

The opinion of the court was delivered by

Bermudez, O. J.

The facts alleged in support of the motion to dismiss are not established by the transcript which contains the motion of appeal and order therein and the bond furnished thereunder seasonably. The transcript was filed in due time.

The motion to dismiss is overruled.

On the Merits.

This case presents the same issues determined in the suit of Andrus vs. Board, 41 An. 697, with the single difference that the plaintiff here did not vote, but she signed the petition. This is enough to estop her.

It is therefore ordered that the judgment appealed from be annulled, avoided and reversed, and it is now ordered and decreed that there be judgment in favor of defendant, dissolving the injunction .and rejecting plaintiff’s demand at her cost in both courts.


text:
    No. 1354.
    The State of Louisiana vs. Joseph McFarlain.
    1. In case a prosecution solely depends upon circumstantial evidence, and the State is necessitated for that reason to eke out prools oí the defendant’s guilt by piecemeal, and'to obtain it from any source possible, it is in all likelihood impossible for the trial judge, at any particular stage of the proceedings, to determine the admissibility or pertinency of testimony; hence, under the well recognized rule of law that no party can be controlled in the order in which he shall introduce his testimony, the proper course for the judge to pursue is to admit the evidence, and, if it is not properly connected subsequently with other incompetent evidence in the case, he should charge the jury to disregard it, and if the grounds of objection assigned thereto by the defendant at the time of the offering prove to have been well taken, he should request proper instructions to be given to the jury; and if same should be refused he should reserve a bill to the refusal.
    '2. When the parol proof offered is intended to establish the fact of an arrest having been made in a proceeding altogether different from the one on trial, merely as a corroborating circumstance, and not for the purpose of proving the existence or pendency of another prosecution, it is competent and the best evidence.
    3. As a general rule, observations indulged in by the judge in presence of the jury though not appertaining to particular testimony is reprehensible as having a tendency to improperly influence the jury. But it is our province to judge of the circumstances under which the same were made, and of their probable effect on the jury.
    4. When the general tenor and effect of a witness’ examination-in-ehief is to establish an alibi, the State is at liberty to cross-interrogate the witness as to other collateral facts and circumstances incidental to that question, though those particular facts and circumstances had not been dealt with in the examination-in-ehief.
    5. The granting of a new trial, on the ground that there was an insufficiency of evidence before the jury to justify a conviction rests in the sound legal discretion of the trial judge, and its exercise will not be disturbed except for grave and serious reasons assigned.
    A PPEAL from the Fourteenth District Court, Parish of'Calcasieu, il Read, J.

      J. O. Gibbs, District Attorney, for the State, Appellee.

      A. R. Mitchell and D. B. Gorham for Defendant and Appellant:
    Statements not contemporaneous with the act, or near enougn to be probably prompted by the same motive and apparently to constitute a part oí it, are incompetent and inadmissible. 1 Bish. Or. Pro., Sec. 1086.
    The indictment, warrant and the return thereon are the best evidence of tlionature of the charge and the fact of arrest; and parol evidence is inadmissible to prove said charge or arrest, without first establishing the loss or destruction of the-record. 1 Greenleaf Ev., Secs. 82-86; Wharton Or. Ev., Sec. 152; 8N. S. 289; oil. 380; 9 B. 381; 12 An. 349; 2 An. 387; State vs. Grayson, 38 An. 788.
    Motive can not be shown by incompetent testimony. Wharton Or. Ev., Sec. 456.
    “ Res Gestee are events speaking for themselves.” Wharton Or. Kv., Sec. 262. It is error to admit incompetent and irrelevant testimony, because it may throw light on the res gestee. Transcript, pp. 7 and 8.
    Incompetent and injurious testimony affecting defendant’s character and forming no part of the res gestee, should be excluded, especially when defendant’s character is not at issue. 1 Bish. Or. Pro., Secs. 1112-1114.
    Where illegal proof has been admitted in gross violation of the well settled principles which govern the same, and whether the jury wore instructed to disregard it or not, is a ground for a new trial. Vol. 2, Graham and Waterman on new trials, pp. 615 and 616.
    The court erred in stating within the hearing of the jury, “that an impression made on witness (as to the identity of the accused) is (or might be) admissible in evidence as a chain of circumstances, if it is the best evidence attainable,” especially where the witness has already shown that his impressions are purely conjectural and uncertain. Tr., pp. 9,10 and 11; Wharton Or. Ev.,Sec. 462. “Impressions which are conjectural and uncertain can not be detailed.”
    Identity, being absolutely essential to justify a conviction, must be clearly established, and by competent testimony. Wharton Or. Ev., Sec. 829.
    “The State has no right on cross-examination of the defendant’s witness to question the latter as to any fact not connected with the matters stated by him in his direct examination. State vs. Swayzo, 30 An. 1328; State vs. Thomas, 62 An.. 349; State vs. Willingham, 33 An. 538; 1 Greenleaf Ev., Sec. 445.
   The opinion of the court was delivered by

Watkins, J.

This case was before us last year and was remanded' for retrial. 41 An. 686.

The accused was convicted a second time of shooting and wounding one John L. Parsley, with intent to kill and murder him, and from judgment sentencing him to ten years’ imprisonment at hard labor he has appealed, and for relief relies on several bills of exception taken to the reception of certain testimony, and one to the judge’s refusal to grant a new trial.

I.

The first bill relates to objections urged by defendant’s counsel,, to proof being made by a State witness, of a conversation had with ■defendant on the day preceding the shooting, and which were: first, that the proof was irrelevant to the issue; second, it was an attack on the defendant’s character, which had not been put at issue; third, and that the effect of the evidence would be to mislead and prejudice the jury against him.

The statement of the witness, as given in the bill of exceptions, is, that on the afternoon of the night on which the shooting occurred at 8 o’clock, P. m., the accused stated, amongst other things, that Dr. Leibert was a rascal and the witness should not have any thing to do with him; that Leibert had caused his arrest, and had him to be put under bond; and that he (defendant) wanted to settle with him, as he was tired of being treated that way. The judge overruled the objections and admitted the evidence because they went to the effect and because he could not tell whether they were prejudicial to the character of the accused until the facts of the case were developed; and if at that time they were so found, he would instruct the jury to disregard them, if not calculated to throw light upon the res gestee. It is a fact to be taken into consideration that the State relied exclusively upon cireuvistantial evidence, and was necessitated, for that reason, to eke out proof of defendant’s guilt, by piecemeal, and to obtain it from any possible source at her command. At the particular stage of the trial at which these objections were interposed, it was, in all likelihood, impossible for the judge to determine the pertinency of the evidence offered; and, under the well-recognized rule of law that no party can be controlled in the order in which he shall introduce his testimony, the only proper course for the judge to pursue was to admit the testimony, under the reservation he made. And, had the grounds of defendant’s objection been well taken, he should have insisted on the proffered instructions being given to the jury, and, the same having been refused, he should have reserved a bill of exceptions. We cannot perceive what other course was open to the judge; and, if the State failed to connect the proffered testimony with the crime charged, it would have been given no weight with the jury, and the defendant’s counsel could have required the judge to so instruct the jury.

We do not regard this evidence as, even remotely, affecting the character of the accused, and it was not offered for that purpose; and we can not perceive how, under proper instructions to the jury, such evidence could mislead or prejudice the minds of the jury. All of the objections urged turn upon the same pivot — did it form one of the connecting links in the chain of evidence against the accused? Of this the trial judge was competent to decide; and, as the record discloses no exception to his charge to the jury, we may fairly assume that his judgment was not erroneously exercised.

IL

The second bill relates to a question asked of a witness, as to whether he had ever arrested the accused, and which was objected to as not being the best evidence, and that the record of the proceeding in which the arrest was made was the best evidence, and it should have been resorted to, to prove the fact of an arrest having been made; and the further objection was urged, that, if introduced, such evidence would have the effect of an attack on the character of the accused.

It is a Well-recognized rule of law, that the best evidence, which, from the nature of the ease must be supposed to exist, and be within a party’s control, must be produced. But we can not perceive in what way the proof offered infringes that rule. The object of the testimony, simply, was to show the fact of the defendant’s arrest, as a corroborative circumstance of what the accused had related to the previous witness, on the evening of the shooting in question. Had the State intended to show the existence or pendency of another prosecution, or some like fact, or transaction, undoubtedly the record thereof would have been the best evidence; but, when the fact sought to be proved is the mere circumstance of an arrest having been made, the parol declarations of the officer who made it is the best evidence. The object in view was to show the mere existence of a fact, not the contents, purport, or effect of the proceedings themselves.

We can not see how such proof could effect in any way the character of the accused. It was not intended to have any such effect, and we do not think it did.

III.

The third bill of exceptions relates to the statement of a witness in regard to seeing some person pass by him on the night of the shooting, riding, very rapidly. The witness stated that it was dark, and that the horseman rode by so rapidly, he being on the ground arranging his saddle, and his own horse being between him and said horseman, he could not distinguish him with any certainty. Whereupon the District Attorney asked the witness to state who he thought it was, and the answer and that was objected to as a matter of opinion, and the objection was sustained. Subsequently, upon further pressing interrogation by the District Attorney, the witness stated that he thought it was the accused. Objection was at once made by the defendant, and it was sustained by the court, and the jury were instructed to disregard the statement. But defendant’s counsel make the point, that subsequently, in the presence and hearing of the jury, the judge made the following observation, viz: “That an impression made on (a) witness is admissible in evidence as (a part of) a chain of circumstances, if it is the best evidence attainable;” and that this statement had the effect of overruling his previous ruling on the introduction of same evidence, and caused the jury to consider said opinions of said witness as evidence, much to the injury and detriment of the accused.

In explanation the judge states at the foot of the bill “that the above remark was made simply in explanation of a ruling, and long after the ruling mentioned was made, and after the witness had retired from the court room, and same was stated to counsel only, and no more than for the purpose of enabling them to dispatch business,” etc.

Under the circumstances, we are unable to perceive in what way the jury were likely to have mistaken the judge’s instructions with regard to the mere opinion of the witness. The statement complained of was a general observation parenthetically made to counsel, and did not refer to the opinion which the witness had expressed, but had reference to impressions made upon witnesses generally, and which he thought, under exceptional circumstances, not existing in this case, might be receivable in evidence. Such a general observation, inapplicable to any particular testimony, though objectionable in a certain sense, can not, under the circumstances of this case, have prejudiced or mislead the jury in reference'to their verdict.

IY.

The fourth bill relates to the evidence adduced on cross-examination of one of defendant’s witnesses who was offered and interrogated for the purpose of proving an alibi. In the course of his testimony the witness stated that the accused crossed bayou Nez Pique at the Guidry ferry at 6 o’clock, on the evening or night of the shooting, which occurred shortly before 8 o’clock, and passed over into the parish of Acadia, and did not return into the parish of Calcasieu, Where the shooting was done, until next morning, when he again recrossed the bayou at Guidry’s ferry, returning. The District Attorney cross-interrogated the witness in regard to the existence of other ferries across said bayou Nez Pique, and their respective distances from the town of Jennings; and to this line of cross-interrogation, defendant’s counsel objected on the ground that it was not in rebuttal of anything adduced by him during the course of the witness’ interrogation in chief.

While conceding the force of the rule, that the State, on the cross-examination of the defendant’s witnesses, must be confined to the matters brought out in his examination in chief, yet we do not regard that rule as violated in this instance. The question was of an alibi. To this question all of the witnesses’ testimony was directed. The defendant’s counsel sought to show that he had left the parish just prior to the shooting, and by a certain, particular route, and by that route he had returned again on the following morning. Certainly proof of the existence of other ferries across that stream, in the same vicinity, and equally convenient and accessible to the accused, would have militated against defendant’s theory, and left a doubt in the mind of the jury, as to the absence of the accused. The cross-interrogation was germain and in line with the interrogation in chief, and the defendant’s objection was properly overruled.

V.

The next question presented for our consideration, is the propriety and justice of the judge’s refusal to grant the accused a new trial. The motion is quite elaborate, and rests upon three propositions: first, that the verdict of the jury is contrary to the law and evidence —much of the latter being recited; second, that the various objections to the introduction of testimony — enumerating those we have, just considered — should have been sustained; third, that since the trial, he had discovered new and additional evidence, which, if ad•duced on another trial, would produce a different verdict.

Of course, in determining whether a new trial should be granted ■on the ground first assigned, the'proof incorporatedinthe bill should disclose some flagrant error, or radical mistake of the judge in the •administration of the cause, or other defect than the mere alleged insufficiency of proof to justify a conviction, as that question is for the. jury alone; and in judging of the estimate placed upon it by the trial judge, we must repose on his sound legal judgment and discretion, in a great degree.

The second proposition is untenable, because our examination of the various bills of exception show them not to be meritorious.

No mention is made in brief or argument in reference to grounds of "the judge’s denial of the motion for new trial; and, on the showing made, on the ground of newly discovered testimony, we are clearly of the opinion that the accused is not entitled to it.

Judgment affirmed.