the administrator had been homologated, the administrator discharged, and the heirs recognized, and sent into possession. It seems further that, following this, the heirs (all save certain minors) had organized the John Lange Land & Improvement Company, Limited, and to this company they had made conveyance of the property acquired by inheritance from their dead ancestor, John Lange. To the rule to show cause why a receiver should not be immediately appointed, the defendants excepted to all that portion of the petition (allegations and prayer) referring to the administration of the succession of John Lange on the ground that jurisdiction thereof was vested into another division of the court. There was no error in the ruling of the trial judge sustaining this exception. Besides, the suit against the John Lange Land & Improve | ment Company for the appointment of a receiver and for the annulment of the charter of the corporation was no place to call upon Charles Lange, the discharged administrator of the succession of John Lange, for an account of the property and effects which had belonged to the estate. To the demand for the appointment of a receiver the company answered, denying that any grounds existed for such appointment, and averred that the affairs of the corporation had not been mismanaged, and no wrong had been done the petitioner. We are not here concerned about the merits of the case,-whether or not there is ground for dissolving and annulling the charter of the company. The sustaining of the exception left that as the only issue on the merits. There is no prayer that the corporation be decreed not to have been organized according to law, and no prayer for a decree that it is pursuing a business, occupation, or calling contrary to law, though there are allegations in the petition to this effect. On the contrary, judged by the prayer for relief, plaintiff's petition proceeds upon the theory that there was a corporation organized under a charter, and that it was pursuing a lawful business. It is this corporation which is asked to be dissolved, this charter that is asked to be annulled. The issue here presented is whether, on the showing made, a receiver should have been immediately appointed. We find that the act of 1898 authorizes the appointment of a receiver at the instance of a stockholder when the corporation has been legally dissolved and the appointment of receiver to liquidate its affairs is requested by a majority in amount of the stockholders. That is not this case. Here the corporation has not been dissolved, and a majority in amount of the stockholders have asked no action. A receiver may likewise be appointed at the instance of a stockholder or creditor when the directors or other officers of the corporation are jeopardizing the rights of stockholders or creditors by mismanagement or misusing the property or funds of the corporation. The testimony offered herein does not establish this condition of affairs. The statute also authorizes a receiver when the corporation has been adjudged not organized according to law, or where it is pursuing a business or calling contrary to law. Here, as we have seen, there is no prayer that this corporation be adjudged not organized according to law, or adjudged to be pursuing a calling contrary to law. The statute further authorizes a receiver when a majority of the stockholders are violating the charter rights of the minority, and putting their interests in imminent danger. The proof administered does not establish this ground. Other grounds for the appointment of receivers are recited by the act of 1898, but the instant case, as presented, does not come within any of them. We do not find error in the judgment appealed from, and the same is affirmed. (106 La.) STATE v. JACKSON. (No. 14,122.) (Supreme Court of Louisiana. Dec. 16, 1901.) CRIMINAL LAW-FORMER JEOPARDY—EVIDENCE-AFFIDAVIT. 1. A former trial cannot be made the basis of a plea of once in jeopardy, when it was had before the judge, instead of before the jury, in a case in which, under the constitution, the prisoner could not waive trial by jury. 2. The affidavit on which the defendant was arrested on the charge on which he is being tried is inadmissible in evidence against him; and since such affidavit is a sworn declaration of the defendant's having committed the crime for which he is on trial, and is therefore of a nature to make an impression on the minds of the jury, its admission in evidence is reversible error. 3. Whether such affidavit is ever admissible, it is certainly not so to prove that a certain witness had not made it, when the fact of the said witness not having made the affidavit has already been established by the witness, and is, besides, not material to the issue. (Syllabus by the Court.) Appeal from judicial district court, parish of St. Martin; T. Don Foster, Judge. Jacob Jackson, alias Shamp, was convicted of crime, and appeals. Reversed. Edward Simon, for appellant. Walter Guion, Atty. Gen., and Anthony N. Muller, Dist. Atty. (Lewis Guion, of counsel), for the State. PROVOSTY, J. A first conviction of de fendant having been set aside on the ground that the trial had been before the jurige, when the case was one in which, under the constitution, a jury could not be waived, and the defendant having been brought to trial a second time, he pleaded once in jeopardy, basing himself on the first trial. It is very plain that, since the first trial could not possibly have resulted in a legal conviction, the defendant was not by it put in jeopardy. For jeopardy to exist, the court must be competent to try the case. Am. & Eng. Enc. Law, "Jeopardy." The court admitted in evidence the affidavit on which the defendant had been arrested. This was error. Affidavits are not legal evidence in criminal cases, no more than is hearsay. And the error is reversible error, since the affidavit was a sworn declaration of the defendant's having committed the crime for which he was on trial, and therefore may have influenced the jury. In explaining why he admitted the evidence, the judge says that the defendant's counsel had asked a witness, in a "peremptory and assuming manner," the question, "Why did you make this affidavit against the accused?" that the question had been asked in this manner in order to create upon the minds of the jury the impression that the witness was prejudiced against the accused; and that the affidavit was admitted for the purpose of showing that the witness had not made it, thereby to counteract the effect sought to be produced on the jury. The witness had testified that he had not made the affidavit. Therefore there was no necessity for introducing the affidavit to prove that fact; and if in any case an affidavit may be admitted to prove, rem ipsam, of who made or did not make it, this is not such a case. That the evidence was introduced for a stated purpose, not on the question of the guilt or innocence of the prisoner, does not cure the situation. After evidence is in for a stated purpose, there can be no guaranty that the jury will not consider it for other purposes. It has been held that the admission of improper evidence cannot be cured by the judge's giving instructions to the jury that they are to disregard such evidence. Rice, Cr. Ev. p. 415. It is therefore ordered, adjudged, and decreed that the verdict and sentence herein be set aside, and that the case be remanded to be proceeded with according to law. (106 La.) STATE v. BANKS. (No. 14,062.) (Supreme Court of Louisiana. Dec. 16, 1901.) CRIMINAL LAW-EVIDENCE AT PRELIMINARY EXAMINATION-STATUTES CONSTRUC TION-EVIDENCE. 1. The rule is that the testimony of a witness taken at the preliminary examination cannot be used on the final trial without a showing of either the death or the permanent absence of the witness from the state; and Act 123 of 1898, organizing the criminal city courts for the parish of Orleans, does not change this rule. 2. An act will not be so interpreted as to give to its provisions an operation beyond the scope of its title. 3. A judicial record, for the making of which the law provides, makes full proof of itself. Neither its execution nor its contents need be proved aliunde. (Syllabus by the Court.) Appeal from criminal district court, parish of Orleans; Frank D. Chrétien, Judge. George Banks was convicted of robbery, and appeals. Reversed. Henry O. Hollander, for appellant. Walter Guion, Atty. Gen., and J. Ward Gurley, Dist. Atty. (Lewis Guion and S. A. Montgomery, of counsel), for the State. PROVOSTY, J. Defendant was tried for robbery. The prosecution, after showing that a witness was absent (not permanently absent) from the state, offered in evidence his testimony taken at the preliminary examination under the provisions of Act 123 of 1898; and the defendant objected on the ground that, until the absence of the witness had been shown to be permanent, his testimony was inadmissible. The judge let in the testimony, founding himself on the following clause in said Act 123, to wit: "When the testimony so taken is certified to by the stenographer and signed by the judge, it may be used as evidence in any subsequent judicial proceedings in case of the death or absence of the witness from the state." It is observed that the act reads, "absent," not "permanently absent," from the state. We think that the objection was good. The title of Act 123 reads as follows: "An act to provide for the organization of the First and Second city criminal courts of the parish of Orleans, providing for their officers and their duties, and for certain rules of procedure and the effects thereof in the cases within their jurisdiction." The object of the act, as thus stated in its title, was to provide for the organization of the city criminal courts, and for the regulation of procedure in the city criminal courts, not in the district criminal court. The act did not undertake to regulate procedure in the district criminal court, and cannot be held to have done so. If the clause in question, upon which the trial judge based his ruling, were construed to have the operation of regulating proceedings in the district court, it would be construed to operate beyond the scope of the title of the act; that is, it would be construed into unconstitutionality. And it would be unconstitutional for the further reason that it would be establishing for the parish of Orleans a different rule from that which obtains in the state at large. It would be in the nature of a special law regulating the practice of a court, and changing the rules of evidence, in contravention of article 48 of the constitution. We think that by the clause in question nothing more was intended than to enunciate the rule of evidence that testimony taken at a preliminary examination becomes admissible on a subsequent trial in case of the death or permanent absence of the witness. The defendant objected to the evidence on the further ground "that no proof had been offered on behalf of the state that the testimony as read by the counsel for the state was a true and correct report; no witness or evidence having been placed on the stand that the witness Easton was sworn, or that the testimony had been read to the witness Easton after having been taken in stenographic We notes at the preliminary examination." think this objection was not good. The notes, if taken in conformity with Act 123, made full proof of themselves, being a judicial record, and did not need to be proved aliunde. The charge of the judge that the jury could find for any one of the lesser crimes included in robbery was proper. The admission of the testimony in question had the effect of vitiating the verdict. It is therefore ordered, adjudged, and decreed that the verdict and sentence herein be set aside, and that the case be remanded to be proceeded with according to law. (106 La.) HAKE v. LEE et al. (No. 13,961.)1 (Supreme Court of Louisiana. Dec. 2, 1901.) TAX SALE-PURCHASE BY COTENANT. 1. A sale of property for taxes which have been paid confers no title upon the adjudicatee. 2. A co-owner, or tenant in common, who purchases the property held in common at a sale for taxes assessed against his co-owners and himself, acquires no greater interest in the property than he held before, except that he has a claim against his co-owners for reimbursement according to their respective shares. (Syllabus by the Court.) Appeal from judicial district court, parish of Grant; W. F. Blackman, Judge. Action by Henry P. Hake against Lee & Beall. Judgment for plaintiff, and defendants appeal. Affirmed. William C. Roberts, for appellants. Robert J. Bowman and Ryan & Blackman, for appellee. Statement. MONROE, J. This is a petitory action, in which the plaintiff seeks to recover an undivided half interest in 760 acres of land situated in the parish of Grant, and valued at about $8 or $10 per acre, and to obtain a judicial partition thereof as between himself and the defendants. The defendants claim to have acquired the entire tract at a probate sale made in the succession of Henry O'Neal, and they allege that the plaintiff is estopped to attack their title for the reason that, as they claim, he was represented at said sale by an agent who was authorized to buy, and who actually bid upon, said land. The facts, as we find them from the record, are as follows, to wit: The land in question was acquired, in indivision, by Henry P. Hake and Henry O'Neal from Wm. Hake and Wm. Coach upon July 11, 1888; the vendors being owners at that time and afterwards of other lands in the same parish amounting to 7,000 acres or more. ties were residents of the state of Michigan, and Henry P. Hake continued to reside there, but O'Neal removed to Louisiana, where he died, probably, in 1897. During the year 1895 and the early part of 1896 O'Neal wrote to Hake on the subject of dividing the land, Rehearing denied January 6, 1902. The par or of buying Hake's interest, or of selling his own, but no agreement was reached. The last of these letters which we find in the record is dated May 1, 1896, and reads: "I wrote you some time ago to give or take so much cash for the lands that you and I own together in Louisiana. I got no answer from you. I am willing to divide those lands; will give you choice,-the east half or the west half; or I will take $2,000 for my share, in cash. Please let me know what you intend to do, one way or the other. Would like for you to come down here. I think that we could fix up a trade. Henry, write soon. Regards to all," etc. At the time this letter was written the land was advertised for sale for the state taxes of 1895, and upon June 6th following the whole tract was adjudicated to O'Neal for $38.50, as in full payment of said taxes, interest, and costs; and thereafter, at O'Neal's death, it was inventoried as belonging to his succession, and later still, in April, 1898, was sold by order of the probate court as the property of said succession, for $1,400, to the defendants in this case. We find in the record the following evidence concerning the taxes for which the sale above referred to purports to have been made, to wit: (1) A tax receipt bearing date January 27, 1896, showing that Hake and Coach, the vendors of Hake and O'Neal, in paying the taxes upon the large body of land owned by them, and from which they had sold the tract in question, had also paid the taxes for 1895 upon said tract, to which receipt is appended this certificate (following the description of property), to wit: "State of Louisiana, Parish of Grant. By authority in me vested by law, and upon the order of C. D. Kemp, tax collector, I this day cancel in full the taxes on this property for 1895; the same having been paid Jan'y 27, 1896. [Signed] R. S. Cameron, Clerk & Recorder." (2) A letter from H. P. Hake dated "South Grand Rapids, Michigan, Feb'y 9, 1897," addressed to C. D. Kemp, Tax Collector, Colfax, La., and reading as follows: "Let me know what the taxes are on the O'Neal and Hake lands, as I wish to pay them, and also let me know when they must be paid. Please let me hear from you by return mail, and oblige, yours respectfully, [Signed] Henry P. Hake," which letter was returned to the writer with the following indorsement, to wit: above has been paid by Hake & Coach. [Signed] C. D. Kemp, Tax Collector." Why the property was again sold for taxes which appear thus to have been paid, is unexplained. Nor does the record inform us how it happened that the tax collector, in so indorsing H. P. Hake's letter of inquiry, should have overlooked the fact that in June, 1896, he had made sale of the land to which that letter referred. In April, 1898, when the tract in question was offered at the probate sale in the succession of O'Neal, there was present Mr. D. E. Corbitt, who for many "The years, as the evidence shows, had represented Wm. Hake (one of the vendors of O'Neal and Hake) as his attorney, and who on that occasion was authorized to purchase for Wm. Hake the undivided half interest of O'Neal in said lands, which interest his principal appears to have understood was all that was to be or could be lawfully sold. Mr. Corbitt was also authorized at that time by Henry P. Hake to deliver to Lee & Beall, the defendants herein, a deed, which Hake had executed as the result of previous correspondence with said parties, to his interest in said land, provided that they paid the price which had been agreed on or considered, to wit, $3,300. In this situation, when the whole tract was offered as the property of the succession of O'Neal, Corbitt gave public notice that one-half of it belonged to Henry P. Hake, and that no interest in such half would pass by the sale. And he afterwards bid on the interest of O'Neal for Wm. Hake, whose money he held for that purpose. But the property was adjudicated, as has been stated, to Lee & Beall. Corbitt nevertheless still made an effort, though unsuccessful, to sell to the adjudicatees the interest of H. P. Hake. But the adjudicatees, notwithstanding the notice which they had received, assumed to have acquired the whole tract, and began cutting the timber, which gave it its principal value; and the plaintiff brought this suit, and several others, which have been before this court in one form or another, to vindicate his rights. The trial in the district court resulted in a judgment for the plaintiff. Opinion. If, as appears to have been the case, the taxes for 1895 had been paid prior to June 6, 1896, when the tax collector attempted to sell the land in order to recover them, it is quite evident that no title could have passed to any one as the result of such attempt. But, even if they had not been paid, the adjudication of the property to O'Neal, who was a co-owner or tenant in common with Hake, gave to the adjudicatee no greater interest in the property than he held before, except that he had a claim upon Hake for reimbursement according to their respective shares. Black, Tax Titles, 141; Clark v. Lindsey, 47 Ohio St. 437, 25 N. E. 422, 9 L. R. A. 740, and note. As O'Neal had never become the owner of Hake's interest, it follows that such interest could not lawfully have been sold as the property of his succession. And as the defendants were fully informed of the situation, and notified at the time that no title to Hake's interest would pass, and, moreover, as the amount for which they pretend to have purchased the whole tract was less than the value of O'Neal's half interest, they appear in this litigation without a shadow of either law or equity to support their position. Some attempt was made to show that Corbitt bid upon the whole prop erty at the succession sale as the authorized representative of Henry P. Hake. It is sufficient to say that the attempt was wholly unsuccessful, and that the plea of estoppel has therefore not even the foundation upon which it is predicated. Judgment affirmed. (106 La.) STATE ex rel. BRITTIN v. CITY OF NEW ORLEANS. (No. 13,748.) (Supreme Court of Louisiana. Dec. 16, 1901.) BOARD OF POLICE-RECEIVERSHIP-NECES SITY-POWERS-ASSETS. 1. The receiver having been appointed at the instance of the city of New Orleans for the stated purpose of closing this litigation, and having as yet taken no steps towards accomplishing that purpose, the city of New Orleans is not in a position to say that the litigation is terminated, and that the receivership is not nec essary. 2. There being debts of the defunct corporation, and also assets, subject to be reduced to possession and distributed to the creditors, a receivership would seem to be necessary. 3. The receiver of a defunct corporation that owes debts and has assets should be clothed with the power to reduce to possession and to distribute to the creditors all the assets of the corporation of which he is receiver, to be found within the jurisdiction of the court that has appointed him. 4. The taxes imposed in the years 1869 to 1876, both inclusive, for the use of the late corporation known as "Board of Metropolitan Police," constitute one fund, out of which the warrants and certificates issued by the said board are entitled to be paid indiscriminately. 5. The powers of a receiver may be enlarged on his own motion, or even on the court's own motion. (Syllabus by the Court.) Appeal from civil district court, parish of Orleans; George H. Théard, Judge. Action by the state, on the relation of A. Brittin, against the city of New Orleans. From an order relating to the receivership in such case, defendant appeals. Affirmed. Samuel L. Gilmore, City Atty., and Frank B. Thomas, Assist. City Atty., for appellant. Charles Louque, for appellee receiver. PROVOSTY, J. This is an appeal from an order granting enlarged powers to the receiver heretofore appointed to have charge of the affairs of the defunct corporation known as the "Board of Metropolitan Police." In 1868 the legislature created a metropolitan police district, and placed the government and control thereof in a board known as the "Board of Metropolitan Police." Said act and the acts supplementary thereto required said board to make annually an estimate of the expense of maintaining a police force in said district, and to apportion the same to the several cities and parishes within said district, and required said cities and parishes to provide the means for promptly paying the amounts thus apportioned to them. The city of New Orleans was one of the cities within said district. Under the apportionments made for the years 1869, 1870, 1871, 1872, 1873, 1874, 1875, and 1876, the amount payable by the city of New Orleans was approximately $800,000 per year. The said board went out of existence in 1877, leaving a large outstanding indebtedness, represented by warrants issued to policemen, etc., and large claims against the city for amounts due under the yearly apportionments, which amounts had thus remained unpaid because of the noncollection of the taxes imposed, to meet the payments. The present suit of State ex rel. A. Brittin v. City of New Or leans was instituted in 1877. The relator, alleging himself to be the holder of warrants issued by the said defunct board for salaries of policemen for the month of November, 1876, to the amount of $9,842.65, and that the city had collected and had on hand $26,000 of the funds provided by law for paying said warrants, prayed for a mandamus to the city to pay the said debt out of the said fund. The order for mandamus was signed by the judge, but was not further acted on. A month later the same relator filed a supplemental petition, in which he prayed for the appointment of a receiver upon the following allegations, to wit: That the city had collected the taxes imposed for the use of the said defunct board, and that there was no existing law by which she could pay same to the creditors of said defunct board; that he was interested, as a holder of certificates of indebtedness of the said board, in the distribution of the accrued and accruing collections made and being made of said taxes; that the said fund so received, exceeding $10,000, was claimed by divers parties, and that in order to preserve the said fund for the interest of all parties concerned, and to insure the receipt of the taxes properly applicable to said fund, and to make proper distribution thereof, a receiver should be appointed to take and receive the taxes collected as aforesaid for the years 1874, 1875, and 1876, and the taxes hereafter to be collected for the same years. The city of New Orleans informally consented to the appointment of the receiver, and he was accordingly appointed. The prayer was that the receiver should be authorized to demand and receive the amounts collected on the taxes of the years 1874, 1875, and 1876, and the appointment was made according to the prayer. Why the powers of the receiver were thus restricted to three out of the eight years for which taxes were imposed, does not now appear. The receiver brought suit against the city of New Orleans on her liability to account for these taxes of 1874, 1875, and 1876, and recovered judgment for some $30,000. This amount he distributed pro rata to the creditors, after satisfying privileged claims. Afterwards he applied to the court for an enlargement of his powers so as to enable him to demand of the city the collections of the taxes of the other years. The court made an order granting the application. Shortly afterwards the receiver died, and a number of creditors applied for the appointment of a successor with the same enlarged powers, and the appointment was accordingly made. This granting of enlarged powers and this appointing of a successor to the late receiver had been done ex parte, without notice to the city of New Orleans. On this ground of want of notice the city caused the order to be set aside. This was in May, 1891. In this condition matters remained until December, 1899, when the city herself applied to the court for the appointment of a successor to the late receiver. In the application it was stated that the appointment was asked to be made "for the purpose of closing this litigation." Accordingly the present receiver was appointed, and the present application for enlarged powers is his first act towards closing the litigation, except that in October, 1900, a suit was filed against him by a Mrs. Begué, a holder of warrants of the late board, and judgment was rendered against him for some $5,000. This application for enlarged powers was made and was granted contradictorily with the city. The prayer of the receiver is that his powers be so enlarged as to enable him to demand of the city and receive the amounts collected on the taxes imposed for all the years during which taxes were imposed for the use of the defunct board. The city, having herself provoked the appointment of this receiver, is not in a position to say that the litigation has terminated, and that a receiver is not necessary to wind up the litigation; and since there is a receiver, it is obvious that he should have all necessary powers to reduce to possession the assets that the receivership may be entitled to claim and receive. The city cannot deny that there are such assets, nor that there are debts of the defunct board still outstanding, nor that she is liable to an accounting for the taxes in question. Because heretofore an amount has been recovered and distributed is no reason why all other amounts that may be due should not be in like manner recovered and distributed. We think, therefore, that the enlarged powers were properly granted. Warrants of the defunct board are not limited for their payment to the taxes of the years during which they were issued, but may come against the taxes of any of the years during which taxes were imposed. In other words, the taxes of the several years from 1869 to 1876, inclusive, constitute one fund, out of which the warrants of the defunct board are payable. This point was settled by the decision of this court in the cases of Fisher v. School Directors, 44 La. Ann. 187, 10 South. 494; Gasquet v. Board, 45 La. Ann. 342, 12 South. 506. The powers of a receiver may be enlarged on his own application, or even on the court's own motion. 20 Am. & Eng. Enc. Law, p. 88. It is therefore ordered, adjudged, and decreed that the judgment herein be affirmed at the costs of the appellant. |