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head of a family residing in this state, within the meaning of the constitution. Where the head of a family at the time of his death actually lived upon and occupied as his homestead 160 acres or less, this land descended under the constitution of 1868 to his heirs, and his administrator or executor was not entitled to possession as against them. It was not necessary to the heirs' rights of inheritance or possession that the ancestor should have filed a statement of its description, and had the same recorded under the act of 1869, § 11, p. 531, McClel. Dig.; Baker v. State, 17 Fla. 406.

Where the head of a family is living on and occupying as an actual homestead land containing more than 160 acres, the law permits him to hold only 160 acres of it as a legal homestead exempt from his debts. Whatever his right to 160 acres, as a legal homestead, was the same right descended to his heirs. Baker v. State, supra.

In the case before us, one of the plaintiffs is a minor, and cannot bind himself by a selection; and on this account, at least, there should have been a "setting apart" of the homestead by a proceeding in a court of equity under section 2, c. 3246, p. 63, Act 1881, (section 54, p. 166, McClel. Dig.,) if it was part of a body of more than 160 acres, and there had never been any setting apart of a homestead therein by the intestate. Whether if all the heirs were adults, and capable of binding themselves, it would be necessary, under such circumstances, to resort to equity for an assignment of the homestead, is a question unnecessary to decide.

If special pleadings were admissible in this case, I think the replication under discussion would (omitting or regarding as immaterial the words "more or less") be good, as the fact of a prior setting apart the homestead by the ancestor in his life-time, in behalf of the heirs after his death, wherever such setting apart was made necessary by his home having been on a body of more than 160 acres, could be proved under, and is comprehended in, the allegation that the land described in such replication was his homestead. Of course, it would be good if the tract occupied by him as a homestead contained only 160 acres or less.

4. As to lands which are not claimed as homestead, and have not been assigned as dower to the widow, an administrator may, if he is in default as to his duties as administrator, be called to a settlement of his accounts by the heirs in the proper tribunal, and required to turn over the residue of the estate, after settling prior claims to them.

5. If the defendants are in possession of lands to which the plaintiffs are entitled, and such lands were not the property of the intestate at his death, and are not assets of his estate, but are claimed from some other source by the plaintiffs, the ordinary pleadings suggested above will make an issue for the trial of these facts.

For the reason indicated above, I think the judgment should be reversed, and the case remanded for further proceedings.

MAY . STATE.

(Supreme Court of Alabama. July 26, 1888.)

1. ARSON-INDICTMENT-OWNERSHIP OF PROPERTY.

Where a wife occupied and cultivated premises, made and gathered corn, and had a corn-pen built, during her husband's absence, though the land was entered by him, an indictment for arson of the pen properly laid the ownership in the wife.

2. CRIMINAL LAW-VERDICT-DEFECTIVE COUNTS IN INDICTMENT.

Where two counts in an indictment charge an offense in different degrees, and one of them is defective, but is not demurred to, a general verdict of guilty will be referred to the good count, and the conviction sustained.

Appeal from circuit court, Conecuh county; JOHN P. HUBBARD, Judge.

The indictment in this case was found in April, 1888, and contained two counts: the first charging that the defendant, Anderson May, "willfully set fire to and burned a corn-pen containing corn, the property of Flora Davidson;" and the second, that "under such circumstances as did not constitute arson in the first or second degree, he did willfully set fire to or burn a cornpen containing corn, the property of Flora Davidson." There was no demurrer to the indictment, and the cause was tried on issue joined on the plea of not guilty. The jury returned a verdict in these words: "We, the jury, find the defendant guilty." The defendant thereupon moved in arrest of judgment (1) "because the jury did not assess the fine or punishment on the defendant;" (2) "because the indictment contains two counts, one charging a felony, and one a misdemeanor, and the verdict does not specify the offense of which the defendant is found guilty." The court overruled the motion; and sentenced the defendant to imprisonment in the penitentiary for the term of two years and six months, and defendant appealed.

Bowles & Rabb, for appellant. T. N. McClellan, Atty. Gen., for the State.

CLOPTON, J. The defendant is indicted for having willfully set fire to and burned a corn-pen containing corn. In the indictment, the ownership is laid in Flora Davidson, who is a married woman. The land on which the pen is located was entered by her husband, who is, and has been for some time, employed at work in Florida, coming home occasionally. The wife occupied and cultivated the premises, made and gathered the corn, and had the pen built, during his absence. Arson is rather an offense against the possession than the property; and the possession, not the estate or interest in the property, must be described. Adams v. State, 62 Ala. 177. Flora Davidson having the actual and rightful possession of the pen, and the premises on which it was situate, and the corn, which was her earnings, being under the statute her separate property, ownership in her was properly laid in the indictment. The statute, defining arson in the third degree, does not prescribe in express terms its constituents, but merely designates the offense. Code 1886, 3784. In such case it is not sufficient to follow the words of the statute. The circumstances which reduce the offense to arson in the third degree should be averred. The second count of the indictment is defective, but was not objected to by demurrer. The first count contains all that is requisite to constitute arson in the second degree. When an indictment contains two counts, one of which is good and the other defective, and no demurrer is interposed to the defective count, a general verdict of guilty will be referred to the good count, and the conviction sustained. Rowland v. State, 55 Ala. 210; Glenn v. State, 60 Ala. 104. Affirmed.

RICHARD et al. v. BERGERON et al.

(Supreme Court of Louisiana. July Term, 1888. 40 La. Ann.) PRACTICE IN CIVIL CASES-NONSUIT.

A judgment of nonsuit, properly rendered, will not be disturbed on appeal. (Syllabus by the Court.)

Appeal from district court, parish of St. Landry; L. L. Bourges and L. I. Tansey, for appellants. pellees.

E. T. LEWIS, Judge.
John N. Ogden, for ap-

MCENERY, J. The plaintiff, authorized by her husband, as the forced heir of her father, Theodore Richard, alleges that she is entitled to one-seventh of his succession. She brings this suit to annul the sales of certain property in the town of Arnandville, made by her father to N. A. Guilbeau, and from Guilbeau to Bergeron, from Bergeron to Louis Comeau, and from Louis Comeau

to N. A. Guilbeau, because they were simulated. The property was assessed in the name of Guilbeau, and was sold for taxes, and bought by defendant Bergeron. This tax sale is also attacked. The district judge dismissed the case because the plaintiff failed to establish her demand. After a careful examination of the evidence, we concur with the district judge that it was insufficient to support the allegations in her petition. The defendants in their brief state: "We content ourselves by asking for an affirmance of the judgment." Judgment affirmed, plaintiffs and appellant to pay costs of appeal.

STATE v. WILLIAMS.

(Supreme Court of Louisiana. October 6, 1888. 40 La. Ann.) LARCENY-VERDICT-GUILTY OF EMBEZZLement.

Under the provisions of section 1056, Rev. St., on the trial on a charge of larceny, the jury, if the facts warrant it, can return a verdict against the defendant "not guilty of larceny, but guilty of embezzlement." Such a verdict is not in conflict with articles 5 and 8 of the constitution of 1879.

(Syllabus by the Court.)

Appeal from district court, parish of Natchitoches; DAVID PIERSON, Judge. D. C. Scarborough, Dist. Atty. Eleventh Dist., and J H. Shepherd, Dist. Atty. First Dist., for the State. J. E. Breda and M. H. Carver, for defendant.

MCENERY, J. The accused was indicted by the grand jury of Natchitoches parish for the crime of larceny. "That Solomon Williams, Jr., late of the parish of Natchitoches, district and state aforesaid, on the 9th day of January, 1888, at and in the parish, district, and state aforesaid, did feloniously steal, take, and carry away one beef of the cow kind, of the value of twenty dollars, the property of A. G. Letcher." He was convicted of embezzlement. The jury under Rev. St. § 1056, returned into court a verdict as follows: “We, the jury, find the defendant not guilty of larceny as charged, but guilty of embezzlement," in direct response to the requirements of said section of the Revised Statutes. Defendant's counsel contend that he was taken by surprise, as he was not informed of the nature of the charge against him in the indictment, and that the offense of which he was convicted was of a higher grade than the one with which he was charged. The defendant was not taken by surprise; because he was bound to know the law, which informed him that on an indictment for larceny, if the facts proved warranted it, he could be found guilty of embezzlement. The statute under which the defendant was convicted is unambiguous. “If it shall be proved that he took the property in question in any such manner as to amount in law to embezzlement, he should not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return on their verdict that such person is not guilty of larceny, but is guilty of embezzlement, and therefore such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for such embezzlement; and no person so tried for embezzlement or larceny, as aforesaid, shail be liable to be afterwards prosecuted for larceny or embezzlement upon the same facts." It was the intention of the law-makers to destroy on the trial the nice technicalities that formerly distinguished the crimes of larceny and embezzlement; so that, as in this case, if the facts established the crime of embezzlement, the defendant could be convicted of that crime; and conversely, as enacted in the first part of the section, if indicted for embezzlement, he could be convicted of larceny in the degrees mentioned in the section.

Defendant's counsel further allege that the statute is in direct conflict with articles 5 and 8 of the constitution of 1879. Article 5 provides that prosecutions shall be by indictment or information. This was by indictment. Arti

cle 8 provides in all criminal prosecutions the accused shall enjoy the right to be informed of the nature and the cause of the accusation. He was informed of the nature of the accusation, and the cause of the accusation fully and specifically set forth in the indictment. Judgment affirmed.

Caldwell v. VICKSBURG, S. & P. R. Co.

(Supreme Court of Louisiana. October 9, 1888. 40 La. Ann.)

1. VENUE IN CIVIL CASES-ACTIONS AGAINST CORPORATIONS.

Corporations must be sued at their domicile for damages arising from the passive breach of their obligations, such as negligence and nonfeasance.

2. SAME-ACTION FOR NEGLIGENCE-DOMICILE OF CORPORATION.

The case, as expounded in Montgomery v. Levee Co., 30 La. Ann. 607; State v. Judge, 33 La. Ann. 954; Heirs of Gossin v. Steam-Ship Co., 36 La. Ann. 186; St. Julien v. Steam-Ship Co., 39 La. Ann. 1063, 3 South. Rep. 280,- -as to the interpretation of subdivision 9, art. 165, Code Pr.,-reaffirmed.

(Syllabus by the Court.)

Appeal from district court, parish of Caddo; A. W O. HICKS, Judge. Alexander & Blanchard, for plaintiff. Wise & Herndon, for defendant. MCENERY, J. The plaintiff sues the defendant for injuries sustained by the breaking through of a bridge constructed by defendant over a public crossing in the city of Shreveport. He alleges that the bridge was defective at the time of construction, and was built in an improper manner, and of inferior material. The company excepted that its domicile was at Monroe, La.; that suit should have been brought there; that it had done no act to bring it within the provisions of subdivision 9 of article 165 of the Code of Practice. The exception was overruled, and, on the merits, there was judgment for the plaintiff, comdemning the defendant to pay damages to the amount of $5,000. The plaintiff alleges gross negligence and default of defendant company in not constructing and maintaining a safe and suitable crossing at the place where he was injured. It is an act of omission, nonfeasance, dereliction of duty, and not the commission of any act that implies force or violence that is alleged by plaintiff. Subdivision 9 of article 165 of the Code of Practice provides: (1) "In all cases where any corporation shall commit trespass, or do anything for which an action for damages lies, it shall be liable to be sued in the parish where such damage is done or trespass committed." An interpretation of this article was given in the case of Montgomery v. Levee Co., 30 La. Ann. 607. Act No. 4 of 1871 imposed upon the defendant company liability in damages for failure or neglect to keep up to standard height a levee the breaking of which inundated plaintiff's plantation. The defendant excepted to the jurisdiction of the court where the suit was brought, alleging the domicile of the company was in New Orleans. The exception was sustained. In rendering the opinion of the court, Associate Justice MARR clearly draws the distinction between acts of commission, implying force and violence, and acts of neglect, failure, or omission,--passive violations of duty.

The court say: "The plain language of subdivision 9 of article 165 of the Code of Practice is that for things done, for acts of commission for which an action for damages lies, the suit may be brought in the parish in which the damage is done; but that this rule does not apply to omissions, neglect, or failure to do, because wrongs of this latter class are not only not mentioned in this article, but are excluded by the use of the words commit' and 'committed,' 'do' and 'done,' which necessarily imply action." In the case of State v. Judge, 33 La. Ann. 954, after reconciling the provisions of defendant's charter with article 165, Code Pr., the court say: "The word trespass,' used in the charter, was employed in its broadest sense, so as to comprehend a variety of wrongs having the common element of a use of force, whether direct or indirect." In the instant case there is no allegation implying trespass, v.5so.nos.1-3-2

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force, or violence, either direct or indirect. In the case of Heirs of Gossin v. Steam-Ship Co., 36 La. Ann. 186, this court said: "It is evident that the legislature, by granting to the company immunity from suit out of New Orleans, its legal domicile, except in cases of trespass, meant to confer some privilege or advantage which otherwise would not have existed. The design was clearly to restrict the character of suits, not brought at the place of domicile, to cases of trespass." In the case of St. Julien v. Steam-Ship Co., 39 La. Ann. 1063, 3 South. Rep. 280, the authorities herein referred to were quoted and affirmed. In this case the doctrine was distinctly announced that "in case the owner of land permits its use and occupancy by a railroad company, and the construction of a quasi public building, without resistance or complaint, he cannot thereafter require the demolition of the works, nor prevent its use by the company, but that he is not debarred of his action for compensating damages, if instituted at the domicile of the company. He cannot treat such entry as tortious, and sue the corporation as trespasser at the place where the injury is alleged to have been sustained." The conclusion we have reached, from a careful review of the authorities, is that the plaintiff's suit does not come under the exception to the general rule that the defendant must be cited to appear at his domicile to answer plaintiff's demand. It is therefore ordered, adjudged, and decreed that the verdict of the jury be set aside, and the judgment appealed from be annulled; and it is now ordered, adjudged, and decreed that the defendant's exception to the jurisdiction of the court a quo be sustained, the suit dismissed, and that all costs be taxed against plaintiff and appellee.

STATE . BANKS et al.

(Supreme Court of Louisiana. October 10, 1888. 40 La. Ann.)

1. INDICTMENT AND INFORMATION-PRESENTMENT-INDORSEMENT.

If, in a criminal case, it appears, from the whole tenor of the proceedings, that an indictment against several persons, therein charged jointly with an offense, properly indorsed as against "A. and als., "was presented in open court by the grand jury, the fact that, in his minutes of the day, the clerk erroneously copied the title so as to make it read as against "A. " only, cannot vitiate the proceedings.

2. CONSPIRACY--CRIMINAL PROSECUTION-EVIDENCE-DECLARATIONS.

"When conspiracy has once been proved, in the opinion of the trial judge, evidence of the acts and declarations of one of the conspirators in the prosecution of the common design is admissible against all the others." Affirming State v. Ford, 37 La. Ann. 443.

3. CRIMINAL LAW-EVIDENCE-ACCOMPLICES.

An accomplice jointly accused with other persons, but not on trial, and discharged under a nolle prosequi, is a legal or competent witness. The fact of his being an accomplice can affect only his credibility, of which the jury are the sole judges. Hence the trial judge cannnot be required to instruct the jury to discredit his testimony, unless corroborated by unimpeached evidence."

4. SAME-INSTRUCTIONS.

Nor can the judge be required to give as a charge the legal maxim, falsus in uno, falsus in omnibus.

(Syllabus by the Court.)

Appeal from district court, parish of East Feliciana; F. D. BRAME, Judge. J. H. Stone, Dist. Atty., for the State. Chas. Kilbourne and I. D. Wall, for defendants.

1 See, as to the admissibility in evidence in criminal cases of the admissions and declarations of co-conspirators, The Anarchists' Case, (Ill.) 12 N. E. Rep. 865, and exhaustive notes; Menges v. State, (Tex.) 9 S. W. Rep. 49; Anderson v. State, (Fla.) 3 South. Rep. $84, and note; People v. Bentley, (Cal.) 18 Pac. Rep. 799, and note; People v. Parker, (Mich.) 34 N. W. Rep. 720.

2 As to the admissibility in evidence of the testimony of an accomplice, and the necessity of corroborating such testimony, see U. S. v. Hinz, 35 Fed. Rep. 272, and note; Hillian v. State, (Ark.) 8 S. W. Rep. 834, and note; Taylor v. Com., (Ky.) Id. 461, and note; People v. Elliott, (N. Y.) 12 N. E. Rep. 602, and note.

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