to say, they were told that they were under | sonal enemies. Schexnayder bore no malice arrest and to go and get ready to go with the to plaintiff; and, of course, the deputy sherdeputy sheriff to New Iberia, the county seat. iff 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 district ly were made nervous and sick by this crimcourt. The election had been hotly contest-inal prosecution. The discovery that plained and great excitement had prevailed, 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 indictments were found against all of them except plaintiff. This suit was then brought. For the arrest on the day after the election, on regular affidavit and warrant, defendants are not liable. No one is a qualified voter whose name is not on the registration book, and, for all that was known, after an examination of the registration roll made in good faith both by the registrar and by others, plaintiff's name was not on the registration book, and, for all that was known, plaintiff was not a qualified voter. For all that was known, therefore, there was probable cause for accusing him of illegal voting. The arrest at the poll was made, however, without affidavit and without a warrant, and it was so made under circumstances which did not call for immediate action. Plaintiff was and had long been a resident of the town, and the head of a family and a prop erty owner in the town, and in fact was an alderman of the town, seeking re-election. There was absolutely no reason for believing that he would flee from justice before an affidavit could be made against him and a warrant issued in due course. Moreover, by article 204 of the Constitution: "Electors shall, in all cases except treason, felony or breach of the peace, be privileged from arrest during their attendance on elections, and in going to and returning from the same." The arrest was therefore doubly illegal. It was a palpable invasion of plaintiff's liberty; and, as a consequence, damages in some amount must be allowed. We think that a judgment for $250 will entirely satisfy the ends of justice. A number of defendants are included in the suit on an allegation of conspiracy. We find no proof of such conspiracy. It is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed as to all the defendants except Schexnayder and the sheriff, and that as to the sheriff and Schexnayder it be set aside; and it is now ordered, adjudged, and decreed that there be judgment in favor of plaintiff, John C. Thomas, and against the defendants, George Henderson, sheriff of the parish of Iberia, and James L. Schexnayder, in solido, in the sum of $250, with legal interest from this date, and for the costs of this suit. No. 17,987. (125 La. 296) STATE v. JEFFERSON. (Supreme Court of Louisiana. Jan. 17, 1910.) 1. CRIMINAL LAW (§ 931*)-TRIAL-CONDUCT OF JURY-SEPARATION-TIME OF RAISING OBJECTION. Objection to the separation of the jury in a prosecution for a capital offense, in which a life sentence was imposed, should have been raised before verdict in order to be a ground for reversal, unless accused or his counsel did not learn thereof until after verdict, and cannot be first raised on the motion for new trial. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2136; Dec. Dig. § 931.*] 2. CRIMINAL LAW ($ 956*)-APPEAL-SEPARATION OF JURY-KNOWLEDGE OF SEPARATION. The burden was on accused, in a prosecu tion for a capital offense, in which a life sentence was imposed, to show that he or his counsel did not know of the separation of the jury until after verdict, where objection on that ground was not made until then, in order to require a reversal for such separation. Law, Cent. Dig. 88 2384-2390; Dec. Dig. § [Ed. Note.-For other cases, see Criminal 956.*] We are not disposed, however, to attach to the proceedings a gravity which they do not possess. The learned trial judge thought so light of them that he was of opinion they did not show a cause of action. Everybody understood that these arrests were nothing more than moves in the political game in progress. The election was so close that one vote might change the result, and it was prognosticated that the result would be contested, whatever it might be; and these accusations of illegal voting, and the prompt action upon them, were, as it were, prelimi- C. 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- counsel), for the State. Appeal from Twelfth Judicial District Court, Parish of Vernon; Don E. So Relle, Judge. Jake Jefferson was convicted of rape, and he appeals. Affirmed. Objection was also urged against the charge of the court on the ground, among others, that it was too general. Our view of the appeal relieves us from the necessity of passing on the merits. The court declined to give the charge requested. PROVOSTY, J. The defendant was convict- | 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. His complaint is that, although the prosecution was for a capital offense, the jury were allowed to separate. Separation of the jury must be availed of before verdict, unless knowledge of it came to the defendant or his counsel only after verdict. In the instant case the irregularity was urged for the first time after verdict by motion for a new trial; and defendant has not shown that the knowledge of it came to him or to his counsel only after verdict. The burden was on him to do so. State v. Gianfala, 113 La. 479, 37 South. 30. Judgment affirmed. (125 La. 297) No. 18,020. STATE v. ROLLINS. An appeal to this court in a criminal case must be made within three days after sentence, by motion in open court, either verbally or in writing. Act No. 108 of 1898. Defendant was convicted in St. Charles parish and sentenced on November 26, 1909, and the order of appeal was granted by the judge in St. John the Baptist parish on December 5, 1909. Therefore the motion for appeal was made more than five days after sentence had been pronounced and not in open court, for it was made in another parish. The motion to dismiss the appeal must be sustained, and the appeal dismissed. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2691-2699; Dec. Dig. § 1069.*] (Syllabus by the Court.) Appeal from Twenty-Eighth Judicial District Court, Parish of St. Charles; Prentice E. Edrington, Judge. Philip Rollins was convicted of an assault with intent to kill, and appeals. Dismissed. J. Q. Flynn and L. R. Rivarde, for appellant. Walter Guion, Atty. Gen., and L. H. Marrero, Jr., Dist. Atty. (R. G. Pleasant, of counsel), for the State. In due time, a motion was filed by defendant, through counsel, for a new trial on the ground that there was no evidence adduced on the trial of an assault on the prosecuting witness by shooting at him; that, although the accused was entitled to the benefit of a doubt, the jury did not give him that benefit. On the 26th day of November, 1909, the accused was condemned to serve at hard labor for a period of one year. The accused appealed. The state moved to dismiss the appeal on the ground that more than three days had elapsed from the date sentence was imposed to the date of the appeal, and that the order of appeal was granted at chambers and not in open court. It is true that the appeal was granted, on motion of the attorney for the accused, while the judge was absent in the parish of St. John the Baptist, on the 5th day of December, 1909. There is no evidence of the filing of the motion. It is quite evident that the appeal was not granted in open court and that over three days had elapsed at the time that it was signed by the judge of the district. It appears by the order that it was filed in the parish of St. John the Baptist, a parish different from the one in which the defendant was condemned. The statute leaves nothing for interpretation on the point at issue, for it provides that appeals to this court in criminal cases shall be taken by motion, either verbally or in writing, in open court within three days after the sentence shall have been pronounced. Act No. 108 of 1898. The requirement of the statute has not been followed. The failure of defendant to obtain a legal order of appeal is fatal. To secure the right of appeal, a defendant must be held to the necessity of complying with the plain provision of the statute. BREAUX, C. J. The district attorney presented an information to the court against Philip Rollins, charging him with having, on The order was absolutely null and void. or before 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 mo On the 15th day of November, 1909, the ac- tion to dismiss the appeal. cused was found guilty. During the trial a bill of exceptions was taken on the ground that the state failed to The motion is sustained. For reasons assigned, the appeal is dismissed. •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes (125 La. 300) No. 18,060. ROUX v. WITZMAN et al. The next paragraph provides that the rate of interest or discount on notes, bonds, etc., may exceed 8 per cent. per annum. The next paragraph provides that a note, bond, etc., (Supreme Court of Louisiana. Jan. 17, 1910.) may include a greater rate of interest or dis USURY (8 26*)-DISCOUNTING NOTES. Act No. 68 of 1908, p. 83, makes no change in the usury laws as to discounts and capitalized interest permitted by article 2924, Rev. Civ. Code. The proviso of said statute merely lays down a rule of evidence applicable to cases where usury is pleadable under the provisions of said article. count than 8 per cent. per annum, provided such obligation shall not bear more than 8 per cent. per annum after maturity until paid. The proviso is applicable only to cases "where usury is a defense" under the provisions of the statute, and lays down a rule of evidence "to show said usury." This construction harmonizes all the provisions of the statute. It cannot be presumed that the lawCase Certified from Court of Appeal, Par-maker intended to enact contradictory legish of Orleans. islation. [Ed. Note. For other cases, see Usury, Cent. Dig. $ 57, 58; Dec. Dig. § 26.*] (Syllabus by the Court.) 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. Henry B. McMurray, Jr., for appellants. Joseph A. Casey and Charles Rosen, for appellee. LAND, J. Our Brothers below submit the following statement: Plaintiff sues on a promissory note for the sum of $47.50, dated August 24, 1908, and payable one month after date, on which the sum of $11 has been paid on account, leaving a balance due of $36.50. This suit is for that balance, with interest at 8 per cent. from maturity, and 20 per cent. thereon as attorney fees. The defense set up is that the note contains usurious interest; 1. e., interest beyond 8 per cent. per annum. It is admitted that defendant received only $25 for the note. The question submitted is whether said note is usurious under the provisions of Act No. 68 of 1908, p. 83, amending and re-enacting article 2924 of the Revised Civil Code of 1870. This statute amended the text of said article by substituting "two years" for "twelve months" as the prescriptive period for the recovery of usurious interest, and by adding the following proviso at the end of the article, to wit: "Provided, however, where usury is a defense in a suit on a promissory note or other contract of a similar character, that it is permissible for the defendant to show said usury whether same was given by discount or otherwise by any competent evidence." No. 17,624. (125 La. 301) CALDWELL v. NELSON MORRIS & CO. The declarations of a company's agent are not admissible against it, unless shown to have been made while acting within the scope of his authority, and in a matter relating directly to the agency and then depending. Declarations made by the agent are admissible against the principal only when forming a part of the res gestæ. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 887-892; Dec. Dig. § 241.*] (Syllabus by the Court.) Appeal from Civil District Court, Parish of Orleans; Fred. D. King, Judge. Action by H. G. Caldwell against Nelson Morris & Co. Judgment for defendants, and plaintiff appeals. Affirmed. Lyle Saxon, for appellant. Merrick & Lewis, Ph. Gensler, and R. J. Schwarz, for appellees. LAND, J. This is a sult for damages for slander and libel, brought by the plaintiff, a former employé of the defendant partnership. The first part of the petition is devoted to charging the defendants with having syste matically cheated and swindled their customers by false weights, and by delivering 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 a party to such nefarious transactions"; that this action on the part of the plaintiff created in the minds of the defendants a strong prejudice against him, and a determination to get rid of the petitioner, and to prevent him from obtaining employment elsewhere. It is further alleged that the petitioner, 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 the company, tendered his resignation August 1, 1903, which was duly accepted. from defendants' actions that they made such reports. The manager at New Orleans testified that, as far as he knew, no such reIt 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 belie. "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 approxof 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 with intent of damaging petitioner and preventing him from obtaining employment and earning his living; that from said reports he has suffered damages in trouble and anxiety in the sum of $5,000, and to his reputation in the additional sum of $5,000, for which petitioner prayed judgment. The defendant excepted to the petition on the ground of vagueness and indefiniteness. and also filed an exception of no cause of action, and pleaded the general issue. The case was tried before a jury, and a verdict and judgment were rendered in favor of the defendant. Plaintiff has appealed. The defendant is a commercial partnership, with headquarters in Chicago, and a number of branches, one of them being in the city of New Orleans. Plaintiff was employed by the manager of the New Orleans branch. Plaintiff resigned his position on August 1, 1903, and at once entered into the employment of the Standard Oil Company. Plaintiff made application for bond to several surety companies, but was turned down, and finally was forced to put up a certified check for $500 in order to obtain the bond required by his new employer. There is not a line of evidence in the record even tending to show that the defendants communicated reports of any kind, good or bad, to any surety company relating to the It has been held that the declarations of £ company's agent, while acting within the scope of his authority, are evidence as a part of res gestæ against it. But, the transaction ended, the agency terminates, and he can no longer speak of it, so as to bind the company. Hill v. Opelousas Co., 11 La. Ann. 292. The admission, to be binding, must be made during and must relate directly to the agency. Reynolds v. Rowley, 3 Rob. 201, 38 Am. Dec. 233; Dykes v. Cockrell, 6 La. Ann. 707; Keane v. Branden, 12 La. Ann. 20. The admission or declaration of his agent binds the principal "only when it is made during the continuance of the agency in regard to a transaction then depending et dum fervet opus." It is because it is a verbal act and part of res gestæ. Greenleaf on Evidence (16th Ed.) vol. 1, § 184c. The testimony was properly ruled out as hearsay. The case being with the defendant on the merits, other exceptions and issues need not be considered. This suit seems to have been instituted by the plaintiff on mere suspicion. While there is no sufficient proof that defendants slandered the plaintiff, there is no doubt that he libeled the defendants by spreading broadcast circular letters charging them with using nefarious methods in their business. Affirmed. (125 La. 305) No. 17,716. BUSH v. GREENHOWARD et al. Const. art. 245, providing that the rights to homestead under laws or contracts or obligations existing at the time of the adoption of the Constitution shall not be impaired or affected by any provision thereof, or any laws passed in pursuance thereof, does not perpetuate the prohibition in the Constitution of 1879 against mortgaging the homestead, and only means that the relative rights of debtors and creditors in the homestead as existing at the time of the adoption of the Constitution shall not be affected. [Ed. Note.-For other cases, see Homestead, Dec. Dig. § 111.*) Appeal from Thirteenth Judicial District Court, Parish of Grant; W. F. Blackman, Judge. Action by Thomas C. Bush against M. Greenhoward and others. From a judgment for plaintiff, defendants appeal. Affirmed. J. A. Williams, for appellants. W. C. & J. B. Roberts, for appellee. On the contrary, the idea was to do away expressly with that provision. In the instant case the homestead was waived. We do not wish to be understood as having found on the facts that the mortgaged property was being held in severalty by the several defendants at the time the mortgage was given; or that the defendants were at that time living on the property, or have continued to do so; or that they had then, or still have, persons dependent upon them for support, or were heads of families. On all these points such cursory examination as we have made of the evidence would lead us to decide against defendants. Judgment affirmed. No. 17,646. (125 La. 307) HACKEMULLER v. FIGUEROA. (Supreme Court of Louisiana. Jan. 17, 1910.) 1. MORTGAGES (§ 380*)-SEIZURE AND SALEVIA EXECUTIVA-VARIANCE. Where there is a discrepancy between the note and the authentic act relied on in the obtention of an order of seizure and sale, the cred [Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 1154; Dec. Dig. § 380.*] 2. MORTGAGES (§ 413*) — FORECLOSURE — RESTRAINING FORECLOSURE. PROVOSTY, J. This suit is in foreclosure of a mortgage via ordinaria. Several defens-itor cannot proceed via executiva. es are pleaded in the answer, all of which, except one, are submitted without argument. We shall pass them over in the same charitable silence, and confine ourselves to the one argued. It is that homestead rights which existed under the Constitution of 1879, and have continued to exist under our present Constitution, cannot be waived, and that the homestead right of the defendants is of that character; that such rights cannot be waived, because homestead rights could not be waived under the Constitution of 1879, and have been perpetuated without change by article 245 of our present Constitution, which reads: "Rights to homestead or exemptions, under laws or contracts, or obligations existing at the time of the adoption of this Constitution, shall not be impaired, repealed or affected by any provision of this Constitution, or any laws passed in pursuance thereof." In support of this contention, the decision of this court in the case of Gilmer v. O'Neal, 32 La. Ann. 979, is relied on. and sale may, in a particular case, be an adeThough an appeal from an order of seizure quate remedy, the seized debtor has also a remedy by injunction; and he may obtain such writ on grounds other than those specified in and otherwise comply with the law regulating Code Prac. art. 739, provided he furnish_bond the issuance of the writ of injunction. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 1193; Dec. Dig. § 413.*] (Syllabus by the Court.) Appeal from Civil District Court, Parish of Orleans; Fred. D. King, Judge. Action by Albert Hackemuller against William Figueroa. Judgment for defendant, and plaintiff appeals. Affirmed. Anthony J. Rossi and B. R. Forman, for appellant. Charles Louque, for appellee. 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 reliable 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 |