granted. There is yet a close relation be.ween the alleged murder of Williams and the murder of the Montgomerys. If in no other aspect they are closely related, they are very much alike in the evidence offered for the conviction of the defendant. There is no direct proof that Owens was connected with either crime; his relation to each crime is made up of the evidence of Lester and of Will Mathis. Therefore, if the excitement and prejudgment of the Montgomery cases existed in these cases, it must have found full and free scope for its operation in the Williams case as soon as the evidence upon which it was based was laid before the court and jury. It is conceded that prejudgment existed in the Montgomery cases, and it existed in these cases merely because Orlando Lester and Will Mathis declared him the moving spirit that compassed their death. Why, then, did not this spirit of prejudgment in the public mind catch a new flame as soon as the public saw it had a foundation as potent in the Williams case as it had in the Montgomery cases-a foundation in the one case exactly like the foundation in the otherthe murder of Williams and the murder of the Montgomerys having for its purpose a riddance of Mathis, Lester, and Owens, one or all, of any prosecution for unlawfully distilling liquor?

In Cavanah v. The State, 56 Miss. 307, it was said that the "undue prejudice” meant by the statute was such as would be likely to be so felt in the jury box as to prevent the accused from having a fair and impartial trial by the evidence and the law. We cannot doubt but that the jury box would have felt the influence of the public prejudgment against Owens in his trial for the murder of the Montgomerys, and its influence was equally prevalent on his trial in the case before us.

Reversed and remanded.

1. Where deceased, who was quite deaf, and walking against the wind and rain, in open daylight attempted to cross the track without looking up, he was guilty of such contributory negligence as to bar a recovery, though defendant was negligent in not keeping a lookout at that point.

Appeal from circuit court, Copiah county; Robt. Powell, Judge.

Action by Mary D. Hackney and others against the Illinois Central Railroad Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

Green & Green, for appellants. Mayes & Harris, for appellee.

TERRAL, J. W. H. Hackley, on the 31st of January, 1902, while attempting to cross a spur track of appellee company. was run over by the moving train of the appellee company and killed. The train of appellee was running at 12 or 15 miles per hour, and without proper lookouts. The deceased was walking against the wind and rain, but in open daylight. He was quite deaf; but he never stopped to look for a train, for, if he had done so, he must have seen the train plainly approaching from his left and rear. The company was negligent in not keeping a lookout where deceased was killed, but deceased was guilty of contributory negligence that bars a recovery by the plaintiffs. If persons of full age will take the hazards assumed by the deceased, they have suffered nothing of which they can legally complain. Affirmed.

1. A factory hand attempted, while the machinery was in motion, to get some oil off the gearing of cogwheels to grease a traveler ring, and injured her hand. She acted under the direction of another employé, not her superior, and against the rules of defendant, and with the knowledge that it was the duty of the other employé to fix the traveler ring. Held, that she assumed the risk of injury.

Appeal from circuit court, Adams county; Jeff Truly, Judge.

Action by Gussie McLain, by next friend, against the Natchez Cotton Mill Company. Judgment for plaintiff, and defendant appeals. Reversed.

E. E. Brown, for appellant. Chas. F. Engle, J. A. Clinton, and Brame & Brame, for appellee.

TERRAL, J. Gussie McLain, a factory hand of 4 years' service, and being 18 years of age, while the machinery was running endeavored to get off the gearing of the cogwheels some oil to grease the traveler ring, and in so doing she had injured the first Joint of the second finger of her right hand, which joint was lost, and the next joint thereto stiffened. It was the duty of one Fuller to fix the traveler ring when it was out of repair, and that fact was well known to her. In doing what she did, she was doing the work of Fuller, and at his direction. Fuller says when he got oil from the gearing and oiled the traveler ring the machinery was stopped; when she attempted to do as Fuller did, the machinery was in motion. What Fuller did, as well as what she did, was against the rules of the company. We think the unfortunate appellee incurred at her own risk all the hazards of her wrongdoing. It must have been apparent to her, as to any

one, that in doing what she did she incurred danger. Fuller was not her superior agent, and he gave her no directions, except for her to oil the traveler ring in his stead if necessary.

We think appellee shows no ground for recovery. Reversed and remanded.

(82 Miss. 73)

GAMBLIN v. STATE. (Supreme Court of Mississippi. March 2, 1903.) CRIMINAL LAW-EVIDENCE-ADMISSIBILITY. 1. On a prosecution for murder it was error to admit in evidence 12 pages of written matter, uncertified to, purporting to be the testimony of a witness before the committing magistrate, such magistrate testifying that he could not give the substance of such testimony, but thought that 12 of the 14 pages taken was before them.

Appeal from circuit court, Neshoba county; G. Q. Hall, Judge.

Frank Gamblin was convicted of manslaughter, and appeals. Reversed.

Jones & Hughston, for appellant. Wm. Williams, Atty. Gen., for the State.

TERRAL, J. Upon the trial of Gamblin in the circuit court of Neshoba county what purported to be evidence of Roland Edwards was offered by the state to be laid before the jury. This purported evidence consisted of 12 pages of written matter, uncertified to by any officer. Before reading it to the jury, reason, not to say law, seems to have called for some explanation. Therefore the committing magistrate, J. C. Harrison, being sworn, stated that he had caused the testimony of Roland Edwards to be taken down in writing, but failed to state that he duly certified to it. He was asked whether he could give the substance of the testimony of Roland Edwards, to which he replied that he could not; that the witness was on the stand for one and a half days; and that what he thought was material was taken down in writing, upon 14 pages of writing, of which 12 of the pages, he thought, were before them, but 2 of them were missing; that he could not say what was in the missing pages. The 12 pages were read to the jury as the evidence of Roland Edwards.

We think it was inadmissible. There is no pretense that the examining magistrate, Harrison, certified to it; for, if so, the certification was lost, and that destroyed the va lidity of the instrument as a means of evidence. Harrison denied that he could give the substance of the evidence of Roland Edwards, and no other person pretended any ability of that sort. The 12 pages of evidence purporting to be the evidence of Roland Edwards were not admissible in evidence.

Other errors are alleged, but the evidence does not support the contention in respect to them.

Reversed and remanded.

BLANCHARD, J. This is an action in damages for slander, insult and abuse.

The amount claimed is $5,000. From a judgment against him, plaintiff appeals.

The plaintiff was a butcher or meat seller in the Dryades Market in the city of New Orleans.

The defendant was the collector for the market lessees. It was his business to collect each day, from those occupying stalls in the market, the rents for such stalls. Occa sionally, however, a stall renter would be permitted by the collector to go over a day, or two days, or three, without paying rent and, then collect it altogether.

On the occasion in question this had been permitted to plaintiff. He owed for several days' rent of his stall, and when the collector appeared to collect, some dispute arose between them as to the amount due-the number of days plaintiff owed for.

It was a trivial matter. The difference between them was only 80 cents. In an angry discussion which ensued they hurled at each other insulting epithets, coupled with threats of violence.

Plaintiff and his witnesses testified he had been called by defendant a liar and other vile names and that plaintiff had not retorted in kind.

On the other hand, defendant and his witnesses testified that plaintiff was responsible for the trouble in his denial of the debt, and that he was the first to use the word "liar" -branding the defendant as such when he claimed plaintiff owed him more than the sum the plaintiff had handed him.

We have come to the conclusion, with the district judge, that this was a case of mutual exchange of opprobrious epithets, of vituperation and abuse on both sides, and that no action for damages lies.

In such cases appellate courts place great reliance upon the appreciation of the facts by the jury or the trial judge, and will only disturb their findings when the same are manifestly incorrect.

In Fulda v. Caldwell, 9 La. Ann. 358, this

court held that the interchange of opprobri- | ous epithets and mutual vituperation and abuse justified the judge in approving a verdict for the defendant, although the slanderous words were proven, and that such a verdict would not be disturbed on appeal.

And to the like effect has been the ruling of the court repeatedly since.

See Artieta v. Artieta, 15 La. Ann. 48; Young v. Bridges, 34 La. Ann. 333; Bigney v. Van Benthuysen, 36 La. Ann. 38; Johnston v. Barrett, Id. 320; Goldberg v. Dobberton, 46 La. Ann. 1303, 16 South. 192, 28 L. R. A. 721; Mihojevich v. Bodechtel, 48 La. Ann. 618, 19 South. 672. Judgment affirmed.

(109 La. 669)

NATCHITOCHES RY. & CONST. CO. ▼. HENRY et al. (No. 14,498.)

(Supreme Court of Louisiana. Feb. 16, 1903.) EXPROPRIATION OF RIGHT OF WAY-DAMAGES-REVIEW.

1. In a case involving the expropriation of a right of way for a railroad, the verdict of the jury will not be disturbed when the only question is as to the value of the property and the amount of the damages, and the testimony is about evenly balanced, and it appears that the jury visited the premises in order to form an idea by their own observation of the locus. (Syllabus by the Court.)

Appeal from judicial district court, parish of Natchitoches; Charles V. Porter, Judge.

Action by the Natchitoches Railway & Construction Company against Samuel J. Henry and others. From the judgment, plaintiff appeals. Affirmed.

Jack & Fleming, for appellant. Samuel J. Henry and Norwood T. Smith, for appellees.

PROVOSTY, J. The plaintiff railway company has brought this suit to expropriate a right of way 50 feet wide across defendants' plantation. The land fronts on Red River, and the right of way is to follow a line at the nearest point 260 feet, and at the farthest point 900 feet, from the river. The jury allowed $60 per acre for the land, and $325 for damages to the plantation. The railway company has appealed, and the defendants have filed an answer to the appeal, asking that the damages be increased to $800, and the amount allowed for the value of the land to $75 per

acre.

We have read the testimony carefully, as well as the able briefs on both sides, in which the weak and the strong points of the testimony pro and con are brought out and presented in such way that the reader could not avoid seeing them, even if he wanted to. To reproduce this analysis, which we find to be approximately correct on both sides, would serve no useful purpose. One side fairly offsets the other. The jury visited the place,

1. See Eminent Domain, vol. 18, Cent. Dig. § 685.

and, after hearing the evidence, came to a conclusion. They were presumably each, and every one of them, as competent as the witnesses themselves to form an opinion in the matter. They, and, for what the court knows, all the witnesses, were perfectly sincere in their estimates. The questions are purely of fact. The wise thing for this court to do under the circumstances is to affirm the judgment, and it is accordingly so ordered.

(109 La. 670)

UPTON v. ADELINE SUGAR FACTORY
CO., Limited. (No. 14,568.)

(Supreme Court of Louisiana. Feb. 16, 1903.)
SUSPENSIVE APPEAL-COMPROMISE AND SET-
TLEMENT-PAROL AGREEMENT-PA-
ROL EVIDENCE.

On Motion to Dismiss.

1. An order of court granting a suspensive appeal, without any step toward completing the appeal, does not operate as a suspensive appeal.

On the Merits.

2. A person who agrees to settlements, and executes notes under circumstances which evidence relinquishment of antecedent claims against the payee, unless the waiver is explained as not including the prior claim, is concluded from recovering upon it.

3. Two persons who are, respectively, creditor and debtor one of the other, may extinguish their claims without the necessity, in order to make the settlement and extinguishment binding, of reducing the agreement to writing.

4. There was no agreement to submit claims to arbitration. The parties settled between themselves. Parol evidence to show the settlement was admissible.

5. Plaintiff some time after the agreement owned, by letter addressed to defendant, that an exchange had been made, by which he had abandoned or "exchanged" his claim for the claim defendant held against him. (Syllabus by the Court.)

Appeal from judicial district court, parish of St. Mary; Albert Campbell Allen, Judge. Action by Thomas J. Upton, Jr., against the Adeline Sugar Factory Company, Limited. Judgment for defendant, and plaintiff appeals. Affirmed.

D. Caffery & Son and J. Sully Martel, for appellant. Mentz & Borah, for appellee.

bond for a devolutive appeal was fixed at $50. The bond for a suspensive appeal was fixed by the Code of Practice. No bond was furnished by the appellant to complete this appeal, and no transcript was filed. This was in July, 1901. The July following, plaintiff and appellant, on his petition, obtained another order of appeal, within the 12 months within which the judgment appealed from had been rendered. The amount of the bond was fixed, and bond was furnished. The appeal was made returnable on the 4th day of August, 1902. On the 5th of August, 1902, the transcript of appeal was filed, and on the same day defendant and appellee moved to dismiss on the ground before mentioned.

The contention of the appellee is that the failure to file the bond under the first appeal, and bring up the transcript on the day it was made returnable, operates as an abandonment of the appeal.

We do not find that it has ever been held that the failure to file the bond of appeal is an abandonment of the appeal.

The abandonment must be actual and voluntary. It is not to be inferred that abandonment was intended, and the right of appeal lost. If no bond is furnished, it is not considered that the appeal is completed, and that the case is pending on appeal.

If the party appealing has not completed his appeal, he may obtain a second order under which he may prosecute the appeal.

This was the decision in Mortee, Adm'r, v. Edwards, 20 La. Ann. 236.

In another case this court held that failure to give bond after having an order for a suspensive appeal does not operate as a bar to a devolutive appeal. Bank of America v. Fortier, 27 La. Ann. 243.

Where, as in the case before us for decision, appellant had obtained an order for both appeals-suspensive and devolutive-but failed to timely file the transcript, the court held that the second appeal is valid, and that opponent's failure to perfect the first appeal is not an abandonment of the appeal. Bowie v. Davis, 33 La. Ann. 346.

There is a difference between an appeal not perfected by the filing of bond and one which has been perfected by filing of the bond. In the former case it has been repeatedly held that there is no abandonment; in the latter, there is an abandonment of the appeal.

Following the rule laid down, we must decline to grant the motion.

The motion to dismiss is therefore overruled, and the case will be decided on the merits.

On the Merits.

Statement of the Case.

Plaintiff is a cultivator of sugar cane, and sells his cane to a manufacturer of sugar.

The defendant is a manufacturer of sugar and a buyer of cane. In the year 1894 plaintiff entered into a contract with the de

fendant company, in accordance with which the company agreed to buy from him the product of about 60 acres of cane, estimated at 1,500 tons.

He delivered about 395 tons; there remaining, he avers, on the 60 acres of cane, 1,170 tons which he did not deliver, by reason, he charges, of the neglect and failure of the company to furnish him for the daily delivery of cane with the stipulated number of cars at the switch, and by reason of the company's arbitrary refusal to receive cane offered to be delivered by him after January 1, 1895.

The defendant, in its answer, urges that, under the terms of their written contract, plaintiff bound himself to deliver his cane at its factory; that his loss was greatly exaggerated. The defendant also says that, at the time the loss was incurred, he (plaintiff) did not believe that defendant was liable in damages, or that he had done anything for which it should be held liable.

The following excerpts are from the contract upon which suit was brought, dated 2d June, 1894:

"The party of the first part contracts and agrees to deliver by the S. P. R. R. on our switch at our factory, the product of about sixty acres of cane say about two hundred tons of two thousand pounds each, of good, sound, unfrozen cane, free from leaves, trash and dirt and properly cut at the top and bottom.

"The party of the first part further agrees to commence delivery on October 15-30, buyer's option at the rate of about fifteen tons per day, and if prevented by bad weather, or any unforeseen contingency, to make the deficiency during the week of said delay, so as to average above quantity at the end of each week. All cane must be weighed at the Adeline Sugar Factory Company's weigher, on their scales."

Although loss was incurred by him as he alleges, plaintiff contracted anew in 1895 with defendant, obtained advances on his crop of 1895, and executed notes for the amount, aggregating $700. At the instance of plaintiff, the defendant brought suit on these notes at their maturity, and caused a writ of sequestration to issue upon the lien that it (defendant) had upon the crop of 1895. Plaintiff answered, owning his indebtedness, and consented to the sequestration, without bond, and agreeing to let the sheriff have the crop cut down and delivered as required by the contract.

Defendant's contention now is that, plaintiff having admitted that he was indebted as set forth in his petition in 1895, he is estopped from setting up any claim against it (defendant) of a date anterior.

On the 28th day of March, 1900, plaintiff wrote to defendant, through Mr. B. A. Oxnard, one of the owners:

"One year ago last January, Mr. L. S. Sprague of Adeline, agreed to exchange notes held against me by Adeline for the claim I

hold against Adeline, for cane lost in 1894. I then agreed to make the exchange, but as the notes have never been tendered, and my claim against Adeline has greatly enhanced in value, and as my duty to my family demand that I do my best to better their condition, which I assure you is distressing, therefore, I trust you will consider my claim as good as others and that you will kindly consider my condition and advise the settlement of the claim."

The testimony discloses that defendant directed the bookkeeper to carry out this exchange, and make proper entry as to it (the exchange) on defendant's books, and that his instructions were followed.

Defendant pleads that plaintiff's claim was extinguished by the agreement to which we have just referred.

The plaintiff, as a witness, said that some time after he had written to defendant, proposing to exchange, as before mentioned, the defendant made to him several new propositions of compromise, which were refused. Objection was made to the testimony on the ground that the asserted offer of compromise had not been consummated, and that in consequence this offer was not admissible.

Opinion.

The delivery or turning over of property seems to be the main cause of contention. Plaintiff complains of defendant's failure to provide transportation for his cane, and urges that it thereby prevented him from delivering the cane he had promised to deliver. He also complains of defendant's refusal to accept delivery after the 1st of January, 1895, after which time we infer that cars might have been obtained from the railroad company.

who executes his note under circumstances which imply a waiver of pre-existing claims against the payee cannot set them up as a set-off when sued on the note.

He

In the case which we have in hand, the circumstances manifest not the least intention to demand damages. The notes executed by plaintiff in favor of defendant were sued upon at the instance of plaintiff. filed an answer consenting to judgment in accordance with an agreement entered into between the parties. But there is another ground of defense, absolutely fatal, we think, to plaintiff's claim: The record discloses that another agreement regarding this claim was arrived at between plaintiff and defendant, as made evident by the letter of plaintiff copied in our statement of the facts, in accordance with which plaintiff's claim, for which he now sues, was to be considered as satisfied by an abandonment by defendant of its notes, on which it had brought an amicable suit against plaintiff, as before mentioned. Plaintiff's claim, by the agreement, was to be an offset of the defendant's. It was a complete agreement, and absolutely disposed of the claim of one against the other.

This was a set-off and extinguishment. It can be shown by parol evidence, and is not limited as to proof to written evidence, as contended by plaintiff, who seeks to have his agreement considered as having fallen within the terms of article 3071, from which we excerpt the following: "An agreement between two or more persons for preventing or putting an end to a lawsuit, adjust their differences by mutual consent," must be reduced to writing.

There was no difference to be adjusted, further than that defendant was an undis

Granted, for an instant, that plaintiff's loss is just as plaintiff avers; the inquiry suggests itself, has he not concluded himself from claiming damages by his own conduct? We are inclined to think he has.

Whatever

The loss has been incurred. right plaintiff had, had accrued, and yet he settled for the cane which had been delivered and received. He did not make any claim to damages. After settlement and payment, as just mentioned, plaintiff made another agreement to enable him to plant and cultivate his crop the year following-the year in which he had incurred the loss of which he complains.

He, in accordance with agreement, received advances which in all probability he would not have received, had defendant known that plaintiff was thinking of holding it responsible in damages for a large amount.

A very similar question was decided by this court in Kemp v. Hutchinson, 10 La. Ann. 495. The court held that a person

and by consent it was held that one was the equivalent of the other, and all claims between them were to be considered extinguished. This agreement of one of the parties to abandon his claim on condition that the other shall abandon his may be shown by the avowal of the parties. The offer was made and was accepted, not to compromise matters, but to "exchange" claims-to use plaintiff's words in his letter to the defendant.

Plaintiff's letter is a complete answer to his complaint that parol evidence was not admissible. It surely is evidence in writing of the agreement, and is not subject to objection on the ground urged.

The terms of this letter show the matter of the two claims had been brought to an end. "I then agreed to make the exchange" -to quote from the letter. Plaintiff must be held bound by his contract. "Conventio facit legem."

Plaintiff avers that defendant did not comply with the agreement to which his letter refers.

In this he is not borne out by the testi