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to say, they were told that they were undersonal enemies. Schexnayder bore no malice arrest and to go and get ready to go with the to plaintiff; and, of course, the deputy sher: deputy sheriff to New Iberia, the county seat. itf bore none, and still less, if anything, did They did go on that day, and under arrest, the sheriff. The case is not one for any after a fashion; and, about an hour and a heavy damages. half after reaching there, and without their We take with a large grain of salt the teseven going to the courthouse, were bonded to timony of the plaintiff that he and his famiappear at the next session of the districtly were made nervous and sick by this crimcourt. The election had been hotly contest- inal prosecution. The discovery that plained and great excitement had prevalled, and tiff had been registered, though his name apeven the proceedings of the following morn-peared in the wrong place, removed all se ing were attended with more or less excite riousness from the accusation. ment and heat. Some months later indict We think that a judgment for $250 will ments were found against all of them except entirely satisfy the ends of justice. plaintiff. This suit was then brought.

A number of defendants are included in For the arrest on the day after the elec- the suit on an allegation of conspiracy. We tion, on regular affidavit and warrant, de- find no proof of such conspiracy. fendants are not liable. No one is a quali It is therefore ordered, adjudged, and de fied voter whose name is not on the regis-creed that the judgment appealed from be tration book, and, for all that was known, affirmed as to all the defendants except after an examination of the registration roll Schexnayder and the sheriff, and that as to made in good faith both by the registrar and the sheriff and Schexnayder it be set aside; by others, plaintiff's name was not on the reg- and it is now ordered, adjudged, and de istration book, and, for all that was known, creed that there be judgment in favor of plaintiff was not a qualified voter. For all plaintiff, John C. Thomas, and against the that was known, therefore, there was proba- defendants, George Henderson, sheriff of the ble cause for accusing him of illegal voting. parish of Iberia, and James L. Schexnayder,

The arrest at the poll was made, however, in solido, in the sum of $250, with legal inwithout affidavit and without a warrant, and terest from this date, and for the costs of it was so'made under circumstances which this suit. did not call for immediate action. Plaintiff was and had long been a resident of the

(125 La. 296) town, and the head of a family and a prop erty owner in the town, and in fact was an

No. 17,987. alderman of the town, seeking re-election,

STATE V. JEFFERSON. There was absolutely no reason for believ- (Supreme Court of Louisiana Jan. 17, 1910.) ing that he would flee from justice before an 1. CRIMINAL LAW (8 931*)—TRIAL-CONDUCT affidavit could be made against him and a


OBJECTION. warrant issued in due course. Moreover, by

Objection to the separation of the jury in a article 204 of the Constitution :

prosecution for a capital offense, in which a “Electors shall, in all cases except treason, I raised before verdict in order to be a ground for

life sentence was imposed, should have been felony or breach of the peace, be privileged reversal, unless accused or his counsel did not from arrest during their attendance on elec- learn thereof until after verdict, and cannot be tions, and in going to and returning from the first raised on the motion for new trial. same."

(Ed. Note.-For other cases, see Criminal The arrest was therefore doubly illegal. It Law, Cent. Dig. $ 2136; Dec. Dig. & 931.*) was a palpable invasion of plaintiff's liber


TION OF JURY-KNOWLEDGE OF SEPARATION. ty; and, as a consequence, damages in some The burden was on accused, in a prosecuamount must be allowed.

tion for a capital offense, in which a life senWe are not disposed, however, to attach to tence was imposed, to show that he or his counthe proceedings a gravity which they do not until after verdict, where objection on that

sel did not know of the separation of the jury possess. The learned trial judge thought so ground was not made until then, in order to light of them that he was of opinion they require a reversal for such separation. did not show a cause of action. Everybody Law, Cent. Dig. 2384-2390 ; Dec. Dig. $

[Ed. Note.-For other cases, see Criminal understood that these arrests were nothing 956.*] more than moves in the political game in progress. The election was so close that one

Appeal from Twelfth Judicial District vote might change the result, and it was Court, Parish of Vernon; Don E. So Relle, prognosticated that the result would be con

Judge. lested, whatever it might be; and these ac

Jake Jefferson was convicted of rape, and cusations of illegal voting, and the prompt

he appeals. Affirmed. action upon them, were, as it were, prelimi O. Evans Hardin and Monk & Kay, for apnary steps in the contest-getting the evi-pellant. Walter Guion, Atty. Gen., and James dence in good shape for the contests. The G. Palmer, Dist. Atty. (R. G. Pleasant, of contestants were political opponents, not per. I counsel), for the State.

PROVOSTY, J. The defendant was convicto prove that the accused shot at or in the died of rape, without capital punishment, and rection of Thomas with intent to kill. was sentenced to the penitentiary for life. Objection was also urged against the

His complaint is that, although the prose- charge of the court on the ground, among cution was for a capital offense, the jury others, that it was too general. were allowed to separate. Separation of the Our view of the appeal relieves us from jury must be availed of before verdict, un- the necessity of assing on the merits. less knowledge of it came to the defendant The court declined to give the charge re or his counsel only after verdict. In the in- quested. stant case the irregularity was urged for the In due time, a motion was filed by defend. first time after verdict by motion for a new ant, through counsel, for a new trial on the trial; and defendant has not shown that the ground that there was no evidence adduced knowledge of it came to him or to his coun on the trial of an assault on the prosecuting sel only after verdict. The burden was on witness by shooting at him; that, although him to do so. State v. Gianfala, 113 La. | the accused was entitled to the benefit of a 479, 37 South. 30.

doubt, the jury did not give him that benefit. Judgment affirmed.

On the 26th day of November, 1909, the accused was condemned to serve at hard la.

bor for a period of one year. (125 La. 297)

The accused appealed. The state moved No. 18,020.

to dismiss the appeal on the ground that

more than three days had elapsed from the STATE v. ROLLINS.

date sentence was imposed to the date of the (Supreme Court of Louisiana. Jan. 17, 1910.) appeal, and that the order of appeal was CRIMINAL LAW (8 1069*)-APPEAL-TIME OF granted at chambers and not in open court. TAKING-DISMISSAL.

It is true that the appeal was granted, on An appeal to this court in a criminal case motion of the attorney for the accused, while must be made within three days after sentence, by motion in open court, either verbally or in the judge was absent in the parish of St. writing. Act No. 108 of 1898. Defendant was John the Baptist, on the 5th day of Decemconvicted in St. Charles parish and sentenced ber, 1909. on November 26, 1909, and the order of appeal

There is no evidence of the filing of the was granted by the judge in St. John the Baptist parish on December 5, 1909. Therefore the motion. It is quite evident that the appeal motion for appeal was made more than five days was not granted in open court and that over after sentence had been pronounced and not in three days had elapsed at the time that it open court, for it was made in another parish. was signed by the judge of the district. The motion to dismiss the appeal must be sustained, and the appeal dismissed.

It appears by the order that it was filed [Ed. Note.-For other cases, see Criminal Law, in the parish of St. John the Baptist, a parCent. Dig. $$ 2691-2699; Dec. Dig. § 1069.*] ish different from the one in which the de(Syllabus by the Court.)

fendant was condemned. Appeal from Twenty-Eighth Judicial Dis- tion on the point at issue, for it provides

The statute leaves nothing for interpretatrict Court, Parish of St. Charles; Prentice that appeals to this court in criminal cases E. Edrington, Judge.

shall be taken by motion, either verbally or Philip Rollins was convicted of an assault in writing, in open court within three days with intent to kill, and appeals. Dismissed. after the sentence shall have been pronounc

J. Q. Flynn and L. R. Rivarde, for appel- ed. Act No. 108 of 1898. lant. Walter Guion, Atty. Gen., and L. H. The requirement of the statute has not Marrero, Jr., Dist. Atty. (R. G. Pleasant, of been followed. The failure of defendant to counsel), for the State.

obtain a legal order of appeal is fatal. To

secure the right of appeal, a defendant must BREAUX, C. J. The district attorney pre- be held to the necessity of complying with the sented an information to the court against plain provision of the statute. Philip Rollins, charging him with having, on The order was absolutely null and void. or boore the 30th day of August, 1909, made it is as if no order had been entered, and an assault upon Isam Thomas with a dan- without an order of appeal there can be no gerous weapon, to wit, a pistol, by felonious- appeal. ly shooting at him with intent to kill.

We limit our decree exclusively to the moOn the 15th day of November, 1909, the action to dismiss the appeal. cused was found guilty.

The motion is sustained. During the trial a bill of exceptions was For reasons assigned, the appeal is distaken on the ground that the state failed to missed.

•For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

(125 La. 300)

The next paragraph provides that the rate No. 18,060.

of interest or discount on notes, bonds, etc.,

may exceed 8 per cent. per annum. The next ROUX v. WITZMAN et al.

paragraph provides that a note, bond, etc., (Supreme Court of Louisiana. Jan. 17, 1910.) may include a greater rate of interest or disUSURY ($ 26*)-DISCOUNTING NOTES.

count than 8 per cent. per annum, provided Act No. 63 of 1908, p. 83, makes no change such obligation shall not bear more than 8 in the usury laws as to discounts

and capitaliz- per cent per annum after maturity until ed interest permitted by article 2924, Rev. Civ. Code. The proviso of said statute merely lay: paid. down a rule of evidence applicable to cases The proviso is applicable only to cases where usury, is pleadable under the provisions of “where usury 18 a defense" under the provisaid article.

sions of the statute, and lays down a rule of [Ed. Note. For other cases, see Usury, Cent. evidence "to show said usury.” This conDig. $8 57, 58; Dec. Dig. § 26.*]

struction harmonizes all the provişions of the (Syllabus by the Court.)

statute. It cannot be presumed that the law. Case Certified from Court of Appeal, Par- maker intended to enact contradictory legIsh of Orleans.

islation. Action by Henry T. Roux against R. L

We therefore answer that the note sued Witzman and others. Judgment for plain. on is not usurious. tiff, and defendants appeal to the Court of Appeal, which certifies a question to the Supreme Court. Question answered.

(125 La. 301) Henry B. McMurray, Jr., for appellants.

No. 17,624. Joseph A. Casey and Charles Rosen, for ap


(Supreme Court of Louisiana. Jan. 17, 1910.)

EVIDENCE ( 241*)-DECLARATIONS OF AGENTLAND, J. Our Brothers below submit the

ADMISSIBILITY. following statement:

The declarations of a company's agent are

not admissible against it, unless shown to have Plaintiff sues on a promissory note for been made while acting within the scope of his the sum of $47.50, dated August 24, 1908, and authority, and in a matter relating directly to payable one month after date, on which the the agency, and then depending. Declarations sum of $11 has been paid on account, leaving principal only when forming a part of the res

made by the agent are admissible against the a balance due of $36.50. This suit 18 for that gestæ. balance, with interest at 8 per cent, from ma (Ed. Note.-For other cases, see Evidence, turity, and 20 per cent. thereon as attorney Cent. Dig. $$ 887–892; Dec. Dig. § 241.*] fees.

(Syllabus by the Court.) The defense set up is that the note contains usurious interest; 1. e., interest beyond 8

Appeal from Civil District Court, Parish of per cent. per annum. It is admitted that de Orleans; Fred, D. King, Judge. fendant received only $25 for the note.

Action by H. G. Caldwell against Nelson The question submitted is whether said Morris & Co. Judgment for defendants, and note is usurious under the provisions of Act plaintiff appeals. Afirmed. No. 68 of 1908, p. 83, amending and re-enact

Lyle Saxon, for appellant Merrick & ing article 2924 of the Revised Civil Code of Lewis, Ph. Gensler, and R. J. Schwarz, for 1870. This statute amended the text of said

appellees. article by substituting “two years” for “twelve months" as the prescriptive period for the re

LAND, J. This is a suit for damages for covery of usurious interest, and by adding the following proviso at the end of the article, slander and libel, brought by the plaintiff, a to wit:

former employé of the defendant partner.

ship. “Provided, however, where usury is a defense in a snit on a promissory note or other contract

The first part of the petition is devoted to of a similar character, that it is permissible for charging the defendants with having systethe defendant to show said usury whether same matically cheated and swindled their cuswas given by discount or otherwise by any com-tomers by false weights, and by delivering petent evidence."

meats, lard, etc., unfit for human food. It The statute, like the article, provides as is further alleged that the plaintiff, when follows:

ordered, “indignantly refused to lend himself "The amount of the conventional interest can a party to such nefarious transactions"; that not exceed eight per cent. The same must be this action on the part of the plaintiff creatfixed in writing; testimonial proof of it is not ed in the minds of the defendants a strong admitted in any case.

"Except in the cases herein provided, if any prejudice against him, and a determination person shall pay on any contract a higher rate to get rid of the petitioner, and to prevent of interest than the above, as discount or other; him from obtaining employment elsewhere. wise, the same may be sued for and recovered within two years from the time of such pay

It is further alleged that the petitioner, ment."

being unable to put up with such methods of

business, and fearing that he would be ruin- plaintiff, who admits that he personally ed in the estimation of his customers, and knows nothing about the matter, but infers owing to the many grievances he had against from defendants' actions that they made such the company, tendered his resignation Au- reports. The manager at New Orleans tesgust 1, 1903, which was duly accepted. tified that, as far as he knew, no such re

It is further alleged that the petitioner ports were made. Plaintiff complains of the sought and obtained employment with the exclusion of testimony tending to show adStandard Oil Company, and made application missions made by an agent or employé of to various surety companies to go on his the defendants that they were the cause of bond, but that each and every one of them the bond companies refusing to go on the declined to further go on his bond; that aft- bond of the plaintiff. The agent is called by er great difficulty he obtained a surety bond the plaintiff the “Southern representative" of on depositing a certified check for $500; tha: the defendants, and by another witness the petitioner charges on information and beliei | "Southern traveling representative, sent to that the defendant company, through their represent Nelson Morris in these proceedings agents and servants, have and are secretly particularly." What were the powers of this communicating to various guaranty compa- agent does not appear, nor is the date of the nies slanderous reports, the exact language alleged admission shown with even approx. of which petitioner is unable to give, derog- imate certainty. It seems a fair inference, atory to petitioner and his good name, and from the statement of the last witness, that that from said reports so made the said guar- the agent (so called) appeared after the litigaanty companies refused and still refuse to go tion had commenced between the plaintiff on petitioner's bond; that through said re- and the defendants. It is not shown that ports a certain assurance company withdrew said agent had any authority to represent the from petitioner's bond, which it had already defendants in the litigation, or what were signed; that such reports were false, mali- his powers. cious, and without probable cause, made It has been held that the declarations of with intent of damaging petitioner and pre-company's agent, while acting within the venting him from obtaining employment and scope of his authority, are evidence as a part earning his living; that from said reports of res gestæ against it. But, the transaction he has suffered damages in trouble and anx. ended, the agency terminates, and he can no iety in the sum of $5,000, and to his reputa- longer speak of it, so as to bind the comtion in the additional sum of $5,000, for pany. Hill v. Opelousas Co., 11 La. Ann. which petitioner prayed judgment.

292. The admission, to be binding, must be The defendant excepted to the petition on made during and must relate directly to the the ground of vagueness and indefiniteness, agency. Reynolds v. Rowley, 3 Rob. 201, 38 and also filed an exception of no cause of ac Am. Dec. 233; Dykes v. Cockrell, 6 La. Ann. tion, and pleaded the general issue.

707; Keane v. Branden, 12 La. Ann. 20. The The case was tried before a jury, and a admission or declaration of his agent binds verdict and judgment were rendered in favor the principal "only when it is made during of the defendant. Plaintiff has appealed. the continuance of the agency in regard to a

The defendant is a commercial partner- transaction then depending et dum fervet ship, with headquarters in Chicago, and a opus." It is because it is a verbal act and number of branches, one of them being in part of res gestä. Greenleaf on Evidence the city of New Orleans. Plaintiff was em- (16th Ed.) vol. 1, § 184c. ployed by the manager of the New Orleans The testimony was properly ruled out as branch. Plaintiff resigned his position on hearsay. August 1, 1903, and at once entered into the The case being with the defendant on the employment of the Standard Oil Company. | merits, other exceptions and issues need not Plaintiff made application for bond to several be considered. surety companies, but was turned down, and This suit seems to have been instituted by finally was forced to put up a certified check the plaintiff on mere suspicion. While there for $500 in order to obtain the bond requir. is no sufficient proof that defendants slaned by his new employer.

dered the plaintiff, there is no doubt that he There is not a line of evidence in the rec-libeled the defendants by spreading broad. ord even tending to show that the defendants cast circular letters charging them with uscommunicated reports of any kind, good or ing nefarious methods in their business. bad, to any surety company relating to the Affirmed.

(125 La. 305)

On the contrary, the idea was to do away No. 17,716.

expressly with that provision. BUSH V. GREENHOWARD et al.

In the instant case the homestead was (Supreme Court of Louisiana. Jan. 17, 1910.)


We do not wish to be understood as havTIONAL PROVISIONS.

ing found on the facts that the mortgaged Const. art. 245, providing that the rights to property was being held in severalty by the homestead under laws or contracts or obliga- several defendants at the time the mortgage tions existing at the time of the adoption of the Constitution shall not be impaired or affected was given; or that the defendants were at by any provision thereof, or any laws passed in that time living on the property, or have conpursuance thereof, does not perpetuate the pro- tinued to do so; or that they had then, or hibition in the Constitution of 1879 against still have, persons dependent upon them for mortgaging the homestead, and only means that the relative rights of debtors and creditors in support, or were heads of families. On all the homestead as existing at the time of the these points such cursory examination as we adoption of the Constitution shall not be af- have made of the evidence would lead us to fected.

decide against defendants.
[Ed. Note.-For other cases, see Homestead,
Dec. Dig. § 111.*]

Judgment affirmed.
Appeal from Thirteenth Judicial District
Court, Parish of Grant; W. F. Blackman,

(125 La, 307) Judge.

No. 17,646.
Action by Thomas C. Bush against M.
Greenhoward and others. From a judgment

HACKEMULLER V. FIGUEROA. for plaintiff, defendants appeal. Affirmed.

(Supreme Court of Louisiana. Jan. 17, 1910.) J. A. Williams, for appellants. W. C. & 1. MORTGAGES ($ 380*)-SEIZURE AND SALEJ. B. Roberts, for appellee.


Where there is a discrepancy between the

note and the authentic act relied on in the ob PROVOSTY, J. This suit is in foreclosuretention of an order of seizure and sale, the credof a mortgage via ordinaria. Several defens- itor cannot proceed via executiva. es are pleaded in the answer, all of which, [Ed. Note. For other cases, see Mortgages, except one, are submitted without argument. Cent. Dig. $ 1154; Dec. Dig. $ 380.*] We shall pass them over in the same char- 2. MORTGAGES ( 413*) — FORECLOSURE — REitable silence, and confine ourselves to the STRAINING FORECLOSURE. one argued. It is that homestead rights and sale may, in a particular case, be an ade

Though an appeal from an order of seizure which existed under the Constitution of 1879, quate remedy, the seized debtor has also a remand have continued to exist under our pres- edy by injunction;, and he may obtain such ent Constitution, cannot be waived, and that writ on grounds other than those specified in the homestead right of the defendants is of and otherwise comply with the law regulating

Code Prac. art. 739, provided he furnish bond that character; that such rights cannot be the issuance of the writ of injunction. waived, because homestead rights could not (Ed. Note.-For other cases, see Mortgages, be waived under the Constitution of 1879, Cent. Dig. $ 1193; Dec. Dig. $ 413.*] and have been perpetuated without change (Syllabus by the Court.) by article 245 of our present Constitution, which reads:

Appeal from Civil District Court, Parish of

Orleans ; Fred. D. King, Judge. “Rights to homestead or exemptions, under laws or contracts, or obligations existing at the

Action by Albert Hackemuller against Wiltime of the adoption of this Constitution, shall liam Figueroa. Judgment for defendant, and not be impaired, repealed or affected by any pro- plaintiff appeals. Affirmed. vision of this Constitution, or any laws passed in pursuance thereof."

Anthony J. Rossi and B. R. Forman, for In support of this contention, the decision appellant. Charles Louque, for appellee. of this court in the case of Gilmer v. O'Neal, 32 La. Ann. 979, is relied on.

Statement of the Case. By said article and said decision no more MONROE, J. Plaintiff obtained executory is meant than that the relative rights of process upon a promissory note for $2,100, debtors and creditors in connection with the signed by Jas. M. Conner, dated November homestead, as existing at the time of the 4, 1903, payable in one year, and alleged to. adoption of the Constitution, should not be be secured by a mortgage importing confesaffected; that is to say, that property which sion of judgment, granted by Conner and asat that time was exempt should continue so, sumed by the defendant, Figueroa. From the and that property which at that time was recitals of the acts of sale and mortgage re liable to seizure in satisfaction of any par- lied on, and which are made part of the peticular obligation should, in like manner, con-tition, it appears that Figueroa sold certain tinue so. It was not meant to perpetuate property to Conner, who, in part payment of the prohibition contained in the Constitution the price, gave a note of $2,100, dated October of 1879 against mortgaging the homestead. 21, 1903, and payable in one year; that he

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