Fourth streets. This claim was allowed by the district court, with interest and costs, but without privilege. The claim is opposed before this court by the executor and the attorney of absent heirs, who contend that the judgment is erroneous, for the reason that, the tax lien being prescribed, the tax is due by the owner of the property assessed. They also complain of the court's action in permitting the filing of a document after the evidence had been closed and the case argued and submitted. In reference to this document, the record discloses that at the time the case was submitted, after argu ment, the court reserved the right of the city to introduce it in evidence. In accordance with the reservation, the document was admitted in evidence. In the absence of any testimony and of any objection of record, this court presumed that the district court properly exercised its discretion, and admitted the evidence, in compliance with the reservation, and after sufficient notice to all parties concerned. Entries on the note of evidence, made in the performance of his duty by a public officer, in the performance of a duty, are prima facie evidence of the facts stated. The claim is for $105.80, balance of taxes for 1883. The tax bill is not of record. Without it, to prove that the assessment is due on property in the name of Womald, of which R. H. Short was the owner, the claim cannot be recovered of the latter's succession.

The court a qua held and decided that the Judicial record shows that the title which stood in Womald's name when the tax of 1883 was assessed was annulled, and the property decreed to Col. Short, and that Col. Short, in October, 1883, evidently paid $450.12 on the tax bill of $556. It is manifest that the court had evidence before it showing that the property was assessed in the name of Womald, and that an amount of the taxes was paid by Short. That evidence is not before this court. It is not of record on appeal, although admitted in evidence on the trial of the case. The judgment also decrees that an amount is due to the city of New Orleans for the taxes of 1889 and 1891, with interests and costs secured by privilege. There is an amount to the city's credit, carried on the account, for taxes of those years. There is no claim in the opposition of that city for the taxes of those years. The judgment is, in this respect, ultra petitem.

The claim of the attending physician, Dr. Joseph Jones, for medical services rendered during the last illness of the late R. H. Short, was carried on the executor's account for $1,000, subject to a credit of $500, amount paid on account. The appellants, legatees, contend that the amount of the judgment in his favor is excessive, and pray to have it reduced. Dr. Jones was the family physician and the friend of the deceased.

The pa

tient's condition required careful medical at

tention. Operations were performed, requiring skill, to alleviate his sufferings. He made 282 professional visits. There were day visits and night visits. He treated the patient surgically at different times, and was detained a number of extra hours beyond the professional visits, necessary in the administration of medicines and nourishment, the patient refusing to receive them from any other hands than those of his physician. The professional services rendered and surgical operations performed are detailed in the account sworn to as correct. The patient was taken ill in January, and in April was confined to his bedroom. From April to the date of his death, in August, the attendance was constant, from once to twice and three times a day, and oftentimes at night. He was in a feeble and delirious state. He was an old man. His malady was, it is testified, of the brain. Besides, he suffered from a protrusion of the intestines. There was a complication of diseases, requiring the skillful and faithful attention which was rendered. Dr. Ike Scott testified that he has been a practicing physician over 40 years, and considers the charge for 14 operations for prolapsus of the rectum, $140, very reasonable, and that the charges for the other services are reasonable. He considers the required attention of an hour more than a visit. Dr. Thomas testifies that he charges three dollars, and night visits five dollars, and that for a visit requiring more than 30 minutes he would charge for extra time. This uncontradicted evidence sustains the correctness of the judgment. We agree with the district judge in fixing the charge for each visit at three dollars, instead of four, as charged, and that in all other respects the proof fully sustains the charges made. It does not appear that the physician exceeded the scope of his authority in the number of visits he saw proper to make, in the surgical operations performed and the medical attention given to the patient.

In so far as relates to the claim of Frank Stewart, carried on the executor's account for $100, and also opposed by the creditors and legatees, the testimony shows: He bought warrants for the deceased, attended to the assessment of his property, and gave other attention to his business, for which it is proved that that charge was moderate. The claim is not stale or prescribed. They were rendered within three years preceding the death of R. H. Short.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended by dismissing the claim of the city of New Orleans, for the taxes of 1883, $105.12, reserving to this opponent whatever right it may have for recovering this tax. In reference to the taxes of 1889 and 1891, the account remains unchanged, and the judgment is amended so as not to include "the further sum of $464.60/100, with 10% per annum in

terest from August 9, 1891, for the tax of 1891." As amended, the judgment is affirmed.

(45 La. Ann.)

LUKIS v. ALLEN. (No. 11,231.) (Supreme Court of Louisiana. May 8, 1893.) PLEADING-SUFFICIENCY OF PETITION MECHA N ICAL ARRANGEMENT-NECESSITY OF CAPTION.

1. The preparation of a petition, in its mechanical arrangement, is left to the taste of the attorney.

2. The only requisite for it is that it be a written or printed document prepared in accordance with articles 171, 172, Code Pr.

3. If, for convenience, and as a matter of taste, the attorney uses a green blank form of a petition, as a part of it, on which is printed the address to the court, and typewriting on white sheets for the other part, both fastened or pasted together so that the green blank form is the last sheet, but so arranged that the printed address appears above the typewriting, and the whole, thus arranged, is a logical statement of the cause of action, it is a compliance with articles 171, 172, Code Pr.

4. The caption, or address to the court. is an essential part of the petition, and it cannot be omitted in the copy served on the defendant. 5. The service of citation will not cure this -defect.

Fenner, J., dissenting.

On Rehearing.

1. The clerk failed to annex a true copy of the petition to the citation.

2. He must make out a faithful and exact copy, in order that it may be served on the defendant.

3. The irregularity urged in limine must be repaired by further service.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; George H. Theard, Judge.

Action by Ernest Du B. Lukis against Charles J. Allen. The petition was dismissed, and plaintiff appeals. Reversed.

Harry H. Hall, for appellant. Carroll & Carroll, for appellee.

The

Im

MCENERY, J. The plaintiff filed a suit against the defendant, and the petition was made up of a part of the blank form for a petition, and the other in typewriting. blank form, which also served for an outside wrapper, had the caption, in printing: "To the Hon. the Judges of the Civil District Court for the Parish of Orleans." mediately under, and following, this caption, or address to the court, the typewritten part of the petition commenced: "The petition of Ernest Du B. Lukis, who resides in London, with respect, represents," etc. The typewritten and blank form parts were at the upper ends of the sheets, pasted together so that the printed part on the last sheet (blank form) projected above the typewritten sheets, so that the reading of the petition from the printed portion of blank could be perused, without interruption, to its conclusion. On the blank form there were the words which usually follow the address to

the court, but they were omitted and excluded from the body of the petition. They were meaningless, as they formed no part of the petition. Nothing in a petition not preceding the signature forms any part of it. The copy of the petition served on the defendant omitted the address to the court. The defendant filed exceptions to the petition: (1) That the petition was not properly addressed to the court; (2) that the copy served on him was not an exact and faithful copy; (3) that, if these exceptions were overruled, the petition disclosed no cause of ac tion. The district judge sustained the last. Plaintiff appealed.

The defendant contends that the address was on the outside wrapper of the petition, and was not, therefore, a part of the petition. There is no law requiring that a petition shall be enveloped in a wrapper, the wrapper forming no part of the petition. Usually, there is no wrapper, the last sheet of the petition serving for this purpose, on which the filing is indorsed. The sheets of paper on which the petition is written can be, and often are, fastened or pasted together. The preparation of the petition, in its mechanical arrangement, is left to the taste of the attorney. It can be fancy, on green paper, or on white and green, so arranged as to alternate in colors, if so desired. The only requisite for it is that it be a written or printed document prepared in accordance with articles 171, 172, Code Pr. If, for convenience, and as a matter of taste, as we presume it was done in this case, the attorney used a green blank form for a part of the petition, and white sheets, with typewriting, for the other, and pasted them together, so that the blank form containing the address should project above the white sheets and typewritten parts, we can find no reasonable objection to the arrangement. The petition thus arranged in this case contains all the requirements of articles 171, 172, Code Pr., in consecutive and logical order.

The copy of the petition served on the defendant omitted the address to the court. Article 172, Code Pr., requires that the petition must mention the name or title of the court to which it is addressed; and this is essential to the validity of the petition, which is admitted by plaintiff's attorney, in his earnest effort to maintain the caption of the petition in this case. Article 175, Code Pr., requires the clerk of court to make out an exact and faithful copy of the petition to be served on the defendant. But the plaintiff contends that the citation served with the petition cured the defect of the omission in the petition of the address to the court, as the citation contains the name or title of the court, and names and residences of both plaintiff and defendant. This seems rea

sonable, but article 178, Code Pr., requires a copy of the petition to be annexed to the

citation. This copy must be such as required by article 175, Code Pr. The address to the court is an essential part of the petition, and its omission cannot be excused, in the copy served on the defendant. The plaintiff's suit, of course, cannot be dismissed for the failure of the clerk to make a true copy of the petition to be served on the defendant. He is entitled to delay for the service of same. It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed, and it is now ordered that this case be remanded, to be proceeded with according to law, and the views herein expressed; defendant to pay costs of appeal.

FENNER, J., dissenting.

On Rehearing.

(Dec. 18, 1893.)

BREAUX, J. In the exception to plaintiff's action for the avoidance of a sale on the ground of misrepresentation and failure of consideration, the defendant's grounds are threefold: (1) That the petition is not addressed to the court; (2) that the copy served upon him is not a true copy of the petition; (3) that the petition discloses no cause of action.

The petition is addressed to the court, in print, on a separate sheet, of a different color than that on which the petition is typewritten. The petition was pasted on the printed cover, just below the caption, which reads: "To the Honorable the Judges of the Civil District Court for the Parish of Orleans." On the reverse of the wrapper is the usual indorsement,-the court, the title of the suit, the name of the attorney, and the date of filing. The petition and the caption are united with mucilage, making the two a sufficiently plain document. The clerk failed to copy the caption of the petition. We have stated the grounds of the exception without reference to the alternative pleas. The last, that relating to the cause of action, is pleaded in the alternative. After stating the first and second grounds, and following them with a prayer for dismissal of the suit, the plaintiff in exception adds that, should they be overruled, and not otherwise, reserving the benefit of the exception, he avers that the petition discloses no cause of action. This differentiates the case from those cases holding that want of citation is waived by a defendant who appears for any other purpose than to plead the want of citation. The article of the Code of Practice requires "mention" of "the name or title of the court to which it is addressed," and that a true and faithful copy of the petition shall be served upon the defendant. The copy served does not contain the caption required. A distinction is maintained in jurisprudence between the technical sufficiency of a citation as a basis for the maintenance of a judgment, and its sufficiency

for the purpose of interrupting prescription. Satterley v. Morgan, 33 La. Ann. 848. The question comes before us on an objection made in limine. We adhere to our previous ruling that another service should have been ordered. In remanding the case for further service, no question arises regarding the effect of the service as heretofore made.

(45 La. Ann.)

STATE v. KENNON. (No. 382.) (Supreme Court of Louisiana. Oct. 25, 1893.) CRIMINAL LAW-CROSS-EXAMINATION OF ACCUSED -NEW TRIAL.

1. When, on cross-examination of an accused upon matters not legitimately to be asked in rebuttal, but which it is claimed might properly be asked by way of impeachment or attack upon the credibility of the witness, prosecuting attorneys should announce the object and purpose of their questions, and offer to restrict the effect of the testimony.

2. Not only error, but injury, must be alleged and shown to justify the reversal of a judgment.

(Syllabus by the Court.)

Appeal from district court, parish of Webster; J. T. Watkins, Judge.

John Kennon was convicted of manslaughter, and a new trial was denied. Defendant appeals. Affirmed.

Drew & Stewart, for appellant. John R. Land, Dist. Atty., for the State.

NICHOLLS, C. J. The appellant was sentenced to hard labor in the penitentiary for the period of seven years, having been convicted of manslaughter under an indictment for murder. Two bills of exception are on the records, and relied upon and urged as grounds of reversal. The second is to the overruling by the district court of a motion for a new trial; the first, to the action of the court in permitting the district attorney, on cross-examination of the accused when on the stand as a witness in his own behalf, to ask certain questions over defendant's objections. The motion for a new trial was asked upon the grounds: (1) That the verdict of the jury was contrary to the law and the evidence; (2) that there was no proof adduced on the trial that the crime alleged was committed in the parish of Webster, or that it was committed within 12 months of the finding of the bill of indictment; (3) the discovery since the trial of testimony to prove that the deceased had, a few hours prior to the killing, threatened to kill the accused. On the trial of this motion the defendant was permitted by the judge to introduce (and have reduced to writing) testimony to establish his allegation that no evidence had been adduced by the state to prove the facts mentioned on his second ground. On the overruling of this motion a bill of exception was reserved, to which was annexed as part thereof the evidence taken on the trial. The district judge held that the verdict was sus

tained by the law and the evidence, and that the testimony claimed to have been newly discovered was merely cumulative; that uncontradicted evidence of the same character had been introduced on the trial, which had caused the verdict for manslaughter instead of murder. The reasons stated by the court justify his rulings. We take occasion to say that it was totally useless to have annexed and brought up the testimony taken for the purpose of establishing that there was no evidence on the trial that the crime was committed in the parish of Webster, or that it had been committed within 12 months of the finding of the bill of indictment. The point at issue was one of fact, with which this court is powerless to deal.

The first bill is as follows: "On the trial of the cause, A. J. Murff, district attorney, offered to prove by the defendant, who had been sworn as a witness for the defense, that he had, immediately after the killing, fled the state, and gone to Arkansas, and changed his name, and was a fugitive from justice till arrested by the sheriff of Webster parish; whereupon the defendant objected, on the ground that the state had closed the case without introducing any evidence of flight; that the defendant, as a witness in his own behalf, had testified nothing on this point, nor any of his witnesses; that no answer to the question could possibly be in rebuttal of anything proved by the defendant in his direct examination, and it was new matter, and an effort on the part of the state to cross-examine the witness on matter not stated in his direct examination. The objection was overruled by the court, as it was the question in cross-examination of the accused on direct examination on the witness stand, and as he stated he had only gone a little way up the road after he shot deceased, 'indicating that he had not fled,' and that there was no objection stated at the time to the question as to changing his name. The counsel for the defendant did thereupon reserve this bill of exception to the ruling of the court, which bill, upon being submitted to opposite counsel, and found correct, was duly presented, and signed in open court." In State v. Underwood, 11 South. 277, we held that an accused in a criminal cause, who avails himself, under Act No. 29 of 1886, of the privileges of testifying, is subjected to cross-examination by the state, but that this examination extends only to matter concerning which the witness has given testimony. "That the same statute which withdrew from him disqualification as a witness, and subjected him to cross-examination, expressly placed a limit to this cross-examination which the state is not permitted to transcend." The object and purpose of this limitation was to guard and secure defendant's constitutional right of not being forced to give evidence against himself. Taking this bill in the record as a whole, looking at all its recitals, we are of the opinion that the ques

tion propounded to the witness by the district attorney, viewed from the standpoint of simple rebuttal testimony on cross-examination, should not have been asked. We do not think a simple statement from the accused that after the killing he walked a short distance up the road justified the state in attempting through the testimony of the accused to establish that he had immediately after the killing fled from the state, and was a fugitive from justice until arrested by the sheriff in Arkansas and brought back. The cross-examination was sought to be made to take a much wider range than the statement of the accused warranted. We think that the court, in a matter so closely connected with defendant's constitutional rights, should confine the state to cross-examination upon the matters testified to, and not allow it to extend to inquiries to things touching which the district attorney, only from what he might deem "indications," should inferentially conclude the accused "intended" by pure implication to testify. In the case at bar we neither think the accused intended to convey to the jury from what he said that he had not fled, (for up to the time he made the statement he does not appear to have been charged with having done so,) nor do we think that the jury could or would have connected that statement, one way or the other, with a question of flight. We are of the opinion that for the purposes of crossexamination in rebuttal the question was improper. The district attorney claimed, however, that, admitting this to be true, the state was authorized on cross-examination to attack or impeach the credibility of the witness, and that the question of flight might relevantly and legitimately be considered for that purpose. In propounding the question the district attorney did not announce that it was asked for the purpose indicated, nor did he tender it to limit its effect. The offer was made generally. The conclusions we have reached upon the bill of exceptions reserved make it unnecessary for us to pass upon the question. We think it proper to say that when, on cross-examination of an accused upon matters not legitimately to be asked on rebuttal, but which it is claimed might properly be asked by way of impeachment or attack upon the credibility of the witness, the district attorney should announce the object and purpose of his questions, and offer to restrict the effect of the testimony. The accused, the court below, and this court would be enabled in this way to deal with certainty upon the legal questions involved. An examination of the bill of exceptions which was reserved has brought us to the conclusion that we can afford the appellant no relief under it. The bill states that the district attorney was permitted, over the objection of the accused, to ask him a certain question, but it goes no further. Whether the question was asked or not; whether, if asked, the accused refused