text:
    No. 7221.
    A. M. Summers vs. Crescent City Railroad Company.
    Plaintiff, whilst riding in one of the defendant Company’s cars, had rested his arms on the sill of the open window, out of which his elbow thus projected a few inches. Another car of the Company, coming down the adjoining track, as it passed by, struck plaintiff’s arm and broke it, the intervening space between the two cars, at that particular point of the road, being so narrow as to cause the accident. Meld, that the Company, as a carrier of passengers, should have taken the proper precautions to avoid such accidents and is responsible for the damage suffered by the plaintiff. Meld, also, that theie was no contributory negligence in the position of the plaintiff.
    Application of defendant to remand the case on account of newly discovered evidence, refused.
    APPEAL from the Sixth District Court for the Parish of Orleans. Iiightor, J.

      L. L. Levy and T. J. Semines, for Plaintiff and Appellee:
    Where a railroad company has obtained a right to construct a double railway track, and to run cars of similar dimension to those in use on other city lines, and violates the conditions of the adjudication, by constructing the tracks and a curve closer than the required distance and by using cars of larger dimensions than those prescribed, thereby using the highway otherwise than the adjudication allowed. A court in determining the care the railway company was bound to exercise, to release itself from liability for an injury to a passenger, caused by the dangerous proximity of the tracks and the use of cars of improper dimension, will be governed by the conditions attached to the contract and adjudication of the right of way, as directly affecting the question of liability. Slattery vs. R. R. Co., 3 App. cases, 1207; Lyman vs. Union R. R. Co., 114 Mass. p. 83; Bodley vs. R. R. Co., 1 App. cases, 754.
    Rules of contributory negligence have no application to facts shown in this case. Barksdale vs. H. O. O. R. R. Co., 23 A. R. 182.
    Plaintiff had the right to suppose the ordinance of the city complied with by defendant, and the extension of his elbow a few inches out of window of car over the space between the tracks or highway, reserved under the adjudication, was on his part no act of negligence. Wharton on .Negligence, Secs. 362, 341.
    The city regulations affect the question of care required of both plaintiff and defendant, and the former had the right to expect the Company in constructing the tracks, had separated the double track the required distance, and operated cars similar in width and dimensions to those on other lines. Hyde Parks vs. Gay, 120 Moss, p. 592; 2 Redfield Law of Radlway, p. 192, Secs. 2, 3, 4; p. 198, Ros. 12,13, 14; Rashville R. ±t. vs. Smith, 6 Haskell, 175 ; Smith vs. Gardiner, 11 Gray, 418.
    Ordinary care, skill and diligence is such a degree of care as men, of ordinary prudence, under similar circumstances, usually employ. Robinson vs. W. P. R. R. Co., 48 California, 410; Ernst vs. Hudson 'R. R. Co., 35 R. X. 27; Ernst vs. Hudson R. R. Co., 39 R. X. 61, on appeal; Beers vs. Housatonic R. R. Co., 19 Conn. 567; Sawyer vs. Sauer, 10 Kansas, p. 466.
    The law does not hold it imprudent in any one to act upon the presumption that another in his conduct will act in accordance with the rights and duties of both. Rewsom vs. Rew Xork Central, 29 R, X. 390. :
    A defendant cannot impute a want of vigilance to one injured by his acts, as ‘negligence — if that very want of vigilance were the consequence of an unlawful omission of duty on the part of defendant. Gordon vs. Grand St. R. R. Co., 40 Barbour, 550; Boudrou vs. R. R. Co., 92 S. C. Penn. p. 475; Pa. R. R. Co. vs. Ogier, 35 Penn. 60.

      Carriers of passengers are bound to carry safely, those whom they undertake to carry, as far as human care and foresight will go; where an injury is received by a passenger in consequence of anything in the construction or management of .the vehicle or the machinery of transportation, the carrier is responsible if any exercise of care or foresight would have prevented it. Edgerton vs. New York & H. R. R., 35 Barbour, 193-8 ; Bowen vs. New New York Central, 18 N. Y. 411; Story on Bailment, See. 601; Pineo vs Roy, 12 Otto, IT. S. 451-7.
    Passenger’s right to recover for an injury, is unaffected by the concuning or contributory-negligence of railway, and a municipal corporation or third persons. G-illet vs. Western R. R. Co., 8 Allen, 562; Snow vs. Housatonic R. R. Co , 8 Allen, 443; Panlmer Admr. vs. Erie R. R Co., 34 New Jersey, 151; Eash vs. 3d Av. R. R. Co. 1 N. Y. 149.
    Railway companies are bound to lay their tracks along a street which is a public road, properly, and keep them in repair and proper condition. Rockwell vs 3d Av. R. R. Co., 64 Barbour, 430; Affirmed in 53 N. Y. p. 625 ; R. R. Co. vs. Stout, 17 Wallace, 661.
    Difference between railways where steam is used, and street ears, commented on. Thompson on Negligence, pp. 362, 341; p. 440, See. 8.
    In 8 Penn. L. St. 479, Laing vs. Calder, passenger’s right of recovery was affected by fact that notice was given to passengers not to put hand outside of window.
    In 9 Harris, Pa. 203, held that passengers could recover where arm projected and was struck hy a passing freight train.
    In McClurg case, the Supreme Court overruled last case. But in 13 and 15th Pass. Rail vs. Boudrou, 92 Pa. 475, has toned the doctrine of contributory negligence to mean, that a passenger “although guilty of a want of care, will not he prevented from recovering damages from the Company, when the negligence of the company was the causa próxima of the injury.”
    In 51 Illinois, Chicago R. R. Co. vs. Pondrom, 341, case of McClurg pronounced not well considered.
    In Spencer vs. Milwaukee R. R. Co., 17 Wisconsin, p. 463, case of Todd in 3 Allen, pronounced unsound and contrary to weight of authority.
    In Winters vs. Hannibal & St. Jo. R R. Co., 39 Missouri, p. 474, opinion is adverse to doctrine in Maryland case cited hy defendant.
    In Huelskamp vs. City Railway, 34 Missouri, p. 539, case was remanded owing to an error in instruction. But in 37 Missouri, p. 539, plaintiff recovered, though injured on platform. Case is thoroughly argued.
    Case at bar presente features different from all cited, in this, that the Company violated the conditions upon which the right of way was obtained, and its liability rests on the unauthorized and unlawful use of the highway and prohibited cars. Rev. C. C. 2315 ; 1 Red-field Railway, 2 Ed. p. 542, Sec. 7; pp. 538, 132; Eclipse Towboat Co. vs. Pont R. R Co., 24 A. R. p. 12; and is also affected by the habits and customs of passengers in using the cars known to the Company.
    There is no fixed standard of damages for a broken limb, and no court will interfere with verdict, unless it find on the record and finding of jury, evidence of passion, partiality or bias. 18 N. Y.t Aaron vs. 32d Av. R R. Co.; 2 Daly, 448,127; 9 Penn. 207; 48 Wisconsin, 569; 27 Missouri, 375; 10 La. A. R. 37; 17 La. A. R. p. 19 ¡ 23 La A. R 181.

      John M. Bormer, for Defendant and Appellant:
    When in a suit to recover damages for personal injuries it appears that the plaintiff was negligent, and contributed by his carelessness to the disaster, he cannot recover, even though the defendant be in fault. 27 An. 54; 30 An. 20; 32 An. 615: 33 An. 154
    This rule applies to actions brought hy a passenger against his carrier. 5 An. 514; 9 An. 441; 11 An. 292; Redfield on Railways, 4th Ed., §193; Sedgwick on Damages, p. 495; Railroad Co. vs. Aspell, 23 Pa, St. 147; Railroad Co. vs. Jones, 5 Otto, 442.
    Erom the admissions in the petition, as well as the proof in the record, it appears that the plaintiff would have sustained no injury if his arm had not been carelessly exposed outside of the car window.

      Such an act is negligence in law, and has been so pronounced by the courts. 3 Allen, 18; 7 Allen, 208; 56 Pa St 294; 29 Ind. 85; 5 Bush, (Ky ) 1: 39 Md 329; S. C. 17 American Rep. 568 ; 2d American Railway Cases, by Redfield, 552, note ; 34 Mo. 45.
    The evidenee shows defendant was not in. fault, but that the accident is attributable entirely to the want of care on the part of plaintiff
   The opinion of the Court was delivered by

Fenner, J.

On the 20th October, 1877, at between 2 and 3 o’clock P. M., plaintiff became a passenger on car No. 18, of the defendant, a street railroad company, and, there being few passengers, seated himself with his body inclined towards the front of the oar, his side towards the open window, upon which his left arm rested with his elbow projecting out of the car a few inches. While thus situated, the said car No. 18, at a certain curve in the track, met car No. 4 of the same company, coming down an adjoining track of defendant, and in passing each other at this point, the last-named car struck defendant’s elbow, breaking his arm and otherwise injuring him, for which injuries he seeks redress in this action for damages.

The action rests upon the charge, that the plaintiff’s injury was caused by the fault or negligence of the defendant. The defense is two-fold : 1. Denial of negligence on the part of defendant; 2. Assertion of contributory negligence on the part of plaintiff.

Evidence responsive to pleadings, establishes the following essential facts:

Defendant’s original contract with the city, passed in 1865, authorized the construction of a double-track railroad, commencing on the neutral ground of Canal street at its junction with Magazine street, and required that “ the tracks shall he three feet distant from each other, from out to out of rail.” The road was built, and a turn-table constructed a,t the corner of Canal and Magazine.

By City Ordinance, approved October 14th, 1867, defendant was “ authorized and required to extend its road to the intersection of Canal and Camp streets,, and to establish a stand and turn-table ” at that point, “the City Surveyor to furnish the lines and levels for the extension, and to give full directions how the work is to he done, etc..”

Legal obstructions prevented the building of this extension until 1873, when application was made to the then City Surveyor to furnish lines and levels for the work.

The testimony of that officer, and of Ms employees, is quite positive, that they staked out the work from Camp street, to a point near the then existing turn-table of the company, beyond the intersection of Magazine street, hut did not complete the lines to the actual junction with the old road, because it would have interfered with the operations of the road during the construction; that after the part staked out liad been built, they expected to be called on to complete tbe lines and levels; but that they were never so called on, and never laid out the additional work, which was done by the company without their knowledge. In this intervening’ space, is found the curve on which the injury to plaintiff occurred, and it is established by the report of experts appointed by the court that, at the narrowest point on this curve, the distance between the tracks is only two feet four and one-half inches from out to out of rails,” instead of three feet as required by the original contract.

Car No. 18, in which plaintiff was at time of injury, was of the class and size of cars ordinarily used by defendant and other city railroads. The report of experts shows the width of its body to have been 7 feet 3f inches, and the length 14 feet 2 inches.

.Car No. 4 which collided, was one of four special summer cars, bought by the defendant within four years prior to the accident, of which two were occasionally, and at certain seasons only, run over this portion of defendant’s road. It was much larger than the ordinary cai's, having a width of body of 7 feet Ilf inches and a length of 16 feet If inch.

The original contract of defendant required that the ears shall be •similar to those used on other city railroads.” The evidence is not very distinct as to what kind of cars were in fact “ used ” on other existing roads at the date of the contract; but it shows that defendant, from the commencement of its operations, had used cars similar to, or not substantially variant from, car No. 18 in size, up to the date of purchase of the four cars of exceptional size above referred to, which were the only ones it ever used substantially differing from car No. 18.

The report of experts shows that when cars 18 and 4 were placed, at rest, and side by side, on this curve, there was a distance between the uprights of their respective windows of 4 3-16 inches. It appears, however, from the evidence, that when in motion, the wheels of each car have a lateral play on the rails of If inch; that the bodies being mounted on india-rubber springs, have a slight additional lateral play; and Anally, that the bodies of the cars project several feet in front of the wheels, so that (the curve in each track being inward toward the other track) in passing the curve, as the bodies are only deflected when the wheels reach the successive points of curvature, an additional proximity is created between the cars in passing each other. All these elements concurring, it is evident that, under conditions likely to occur, cars Nos. 4 and 18, in passing, at the same time, the narrow point of this curve, might graze, if not collide with, each other; and there is some evidence tending to show that, on this particular occasion, such collision did actually occur. Tliis, however, is disputed, and is of no consequence.

The evidence, as well as common observation, establishes that it is a customary practice for persons riding in the street cars of this city, when not crowded, to sit with an arm resting- on the window and projecting more or less outside of the car. This practice is suggested, if not invited, by the construction of the windows, which are of a height that renders such a position easy and comfortable, and also ■ by the natural inclination to face the direction in which one travels, to look out at passing objects, and, in a climate like ours, to turn the face so as to catch the breeze. The practice is so common that no one could possibly ignore its existence. Under customary conditions of construction universally prevalent here, the distance between parallel tracks and between passing cars is such as to render the practice absolutely free from danger of such collision as that which injured plaintiff. It does not appear that there is any point on any railroad in the city where cars would pass each other so closely as to expose a person in the position of plaintiff to the slightest danger. It is affirmatively shown that there is no such point on the line of defendant except this particular one, and even there, the injury could not have happened but for the exceptional width of one of the cars.

It appears that on certain roads where tracks are bordered by avenues of trees, rendering such exposures of the person perilous, care is taken to post notices or to construct wire-screens to prevent them. Upon the up-town portion of defendant’s line, where the wide cars like No. 4 were more commonly used, defendant has given special instructions to its drivers to be careful in passing each other on a curve existing there although the tracks were three feet apart. But at this Canal street curve, with so much narrower space between the tracks,' no such instructions were given, no notices of any kind wex-e posted, no precautions taken, and, ixi point of fact, at the time of this accident, car No. 4 was passing the other caí-, in this curve, at a full trot, and without the driver’s paying any attention to the position of passengers in either car.

We have been thus explicit in stating facts and circumstances, because, in cases involving questions of negligence, or that kind'of fault which corresponds to the culpa lews of the civil law, the difficxxlty lies not so much in ascertaining the legal principles, as in applying them to particular states of fact.

We may, at the oxxtset, say that the doctrine of contributory negligence on the part of plaintiff, as a valid defense in such actions, is too firmly rooted in our jurisprudence to be open to further question. Quod quis ex culpa sua damnum sentit, non intelligitur darnmm smttre. Where the injury results from the negligence of plaintiff and the negligence of defendant, in such manner that the negligence of each may be considered as a juridical cause of the injury, the law will not undertake to apportion either the blame or the damage. As said by a learned judge, “the law has no scales to determine in such cases, whose wrong doing weighed most in the compound that occasioned the mischief,” and by another, “ the law cannot measure how much the damage suffered is attributable to the plaintiff’s own fault. If he were allowed to recover, it might be that he would obtain from the other party compensation for his own misconduct.” Thompson on Neg. p. 1147.

It must'be observed, however, that, in determining what constitutes negligence, precisely the same rules must be applied to the acts of defendant charged as negligence and to the acts of plaintiff charged as contributory negligence.

Definitions of negligence by text-writers and judges are almost as numerous as the text books and decisions on the subject.

We venture, however, to give another, compounded from the definitions of negligence by Baron Alderson and by Mr. Wharton, and of the definition by the latter of “ negligence as the juridical cause of injury.” Wharton on Neg. Secs. 1, 3, 73.

Juridical negligence is the inadvertent omission to do something which it would be the legal duty of a prudent and reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, to do, or the inadvertently doing something which it would be the legal duty of a prudent a,nd reasonable man not to do— such act or omission being on the part of a responsible human being, and being such as in ordinary natural sequence immediately results in the injury complained of.

This definition, though perhaps redundant, includes, unequivocally, all essentials, and excludes acts not properly within the domain of negligence. It excludes offenses or intentional wrongs. It excludes mere moral duties. It excludes irresponsible persons, of whom various classes are mentioned by Mr. Wharton. And it excludes all acts or omissions, which, though they may be negligent, with reference to certain relations or contingencies, have no camal connection, with the injury complained of. ■ •

A man who commits a negligent act takes upon himself the risk of all injuries, which, according to common experience and in the exercise of reasonable foresight, might have been anticipated as the consequence thereof; but this is the extent of his responsibility.

As said by Mr. Wharton, “ the particular damage is to be viewed concretely, and the question asked, 'was this in ordinary natural sequence’ from the negligence? If so, the damage is imputable to the party guilty of tlie negligence.” In the language of Lord Campbell, if the wrong and the legal damage are not known by common experience to be usually in sequence, and the damage does not, according to the ordinary course of events, follow from the wrong, the wrong or the damage are not sufficiently conjoined or concatenated, as cause and effect, to support the action.” Gerhard vs. Bates, 2 Ell. and Bl. 490.

Applying these principles to the facts of this case, which we have so fully and carefully stated, the first question is:

Was the defendant guilty of negligence?

Assuming that defendant violated the law, either in constructing its tracks so closely together, or in using cars of the width of No. 4, that alone would be sufficient to establish its fault. But although the preponderance of evidence is decidedly in favor of this assumption, yetas it is vehemently controverted and not absolutely free from doubt, we prefer to rest our decision on broader principles.

As a carrier of passengers, it is elementary that defendant’s duty was to exercise diligence, skill, care and foresight, to carry them safely. Penn. Co. vs. Roy, 102 U. S. 451.

It was bound to know that its passengers, in common with those on other street railways, were in the habit of riding with their arms resting on the window and projecting outside of the car ; that under the usual conditions of construction of parallel tracks in this city, this practice was free from danger of collision with passing cars on their respective tracks; that the width between its own tracks at this curve was exceptionally narrow; that the car No. 4 used by it was exceptionably wide; that such car, in running over that curve, was liable to meet another car; that, in such meeting, they would, under conditions perfectly probable, pass each other so closely as, if not to collide, to come very near touching; that, in such event, a passenger, in either car, occupying the position shown to be very commonly occupied, would inevitably be injured.

Knowing these things, a reasonable care for the safety of others would have dictated the duty of using precautions to avoid the danger. Sufficient precautions might have been used without any inconvenience to defendant. The curve was short, aiid but little delay would have been occasioned by forbidding their drivers to pass each other at that point; or by instructing them to drive slowly and give warning to exposed passengers; or by any other mode of effective notice. Defendant used no precaution of any kind. Its conduct presents every element of negligence, as defined by us. As well said by an able Judge: When we are engaged in an act which the surrounding circumstances indicate may be dangerous to others, and when the event whose occurrence is necessary to make our act injurious is one which we can readily see, may occur under the circumstances and unite with the act to commit the injury, we are culpable if we do not take all' the care which prudent circumspection would suggest to avoid the injury.” Fairbanks vs. Kerr, 70 Penn. St. 86.

We are next to inquire whether plaintiff was guilty of any contributory negligence.

The sole negligence charged is his act in sitting as he did with his arm resting on the window, and his elbow projecting out of the car. Applying the principles already enunciated to the facts stated, we are of opinion that there is a comjdete want of causal connection between this act and the injury. We cannot express the principles applicable in such a case more forcibly than was done by the court in the case last quoted: “We are not to link together as cause and effect, events having no probable connection in the mind, and which could not, by prudent circumspection and ordinary thoughtfulness, be forseen as likely to happen, in consequence of the act in which we are engaged. It may be true that the injury would not have occurred without the concurrence of our act with the event which immediately caused the injury; but we are not justly called to suffer for it, unless the other event was the effect of an act, or was within the probable range of ordinary circumspection, when engaged in the act.”

It seems to us manifest, under the circumstances of this case, that no ordinary circumspection or foresight would have suggested to the most cautious person, situated as plaintiff was, the slightest probability of danger from the meeting of a car on a parallel track. Seeing a car so approaching, he would have been perfectly justified, according to all common experience, in diverting his attention and resting in the perfect confidence that it would pass without touching him.

If the car had jumped the track and had thus collided with the exposed arm of plaintiff, a different question would be presented. Quoad such a contingency, the act of plaintiff might have been juridically negligent. A prudent man might well foresee the possibility of strcli an occurrence, and might well be held to have taken upon himself the risk of such a peril. But viewing the particular damage here suffered concretely, Mr. Wharton’s question, “was it in ordinary natural sequence from the negligence,” must be answered in the negative.

The cases relied on by defendant’s counsel, as to similar exposures of person in steam railway carriages, have, in our opinion, no applicability here. They are founded upon the common experience, as Mr. Wharton justly says, “ of the closeness with which cars on double tracks and switches must necessarily pass to each other.” Wharton on Neg. § 360.

The slightest observation of the construction, and operation of steam railways would serve to warn any one of the danger of such exposures resulting from the frequent proximity of tracks, as well as from other contingencies.

The precisely contrary result of observation and experience with reference to street railways in New Orleans, as shown by tbe evidence, removes this case from the operation of such authorities.

As to the quantum, of damages, the evidence shows that plaintiff suffered a fracture of the humerus and a dislocation of the elbow; that he was under treatment and confined to his bed or room for about two mouths, enduring much pain and suffering; that notwithstanding skilful surgery, he is left with his arm permanently disabled, incapable of flexing- it beyond an angle of 90 degrees, and then only with pain; his arm wasting for want of exercise, useless in feeding or dressing himself, or in his business, which is that of a tobacco weigher and sampler; occasioning him pain with every change of weather, and without hope of improvement.

We are not prepared to say that the verdict of the jury, awarding him $7500 as damages, is so excessive as to justify us in disturbing it.

The application of defendant to remand the case on the ground of newly discovered evidence, is refused. It would require an extraordinary state of case to induce us to follow the precedent set in Schneider vs. iEtna, 30 A. 1198.

Judgment affirmed, at cost of appellant.

Rehearing refused.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 8354.
    The State of Louisiana vs. Eliza Bartley.
    The indictment in this case is framed in accordance with Section 1048 of the Revised Statutes, and is good for a case of murder by poisoning, though the means by -which the murder was committed, the poisoning, is not stated in said indictment.
    Article 8 of the present Constitution did not repeal said Section 1048, and does not require any more than the latter does, that the indictment should state the means used to commit the murder.
    Evidence of the poisoning was, therefore, admissible under the charge of murder.
    The question of the admissibility of the defendant’s confession is one of law and fact mixed, inasmuch as said confession is admissible according as it was voluntary or not; it is, therefore, reviewable by this Court.
    The ruling of the Judge a quo on a question of this character, unless clearly erroneous, should not be disturbed.
    APPEAL from the Criminal District Court for the Parish of Orleans. Homan, J.

      Percy Roberts, for the Accused, Appellant:
    1. Under Article 8 of the Constitution of 1879, an indictment is fatally defective which does not inform the accused of the “ cause" as well as the nature of the accusation.
    2. Before the confession of the accused can be received in evidence, the State must show “ affirmatively,” that the confession was voluntary. 3 A. 499; 28 A. 927 ; 30 A. 881.
    3. Mere weight, or preponderancy of evidence in criminal cases, as to a fact, does nob prove the fact “ affirmatively ” 30 A. 1324; 5 Cal. 127; 10 Minnesota, 407.
    4. The credibility of a witness is a matter exclusively for the jury to decide. 29 111 287; 41 111. 10 and 251; 35 G-a. 75; 5 Michigan, 305 ¡ 26 A. 107; 30 A. 457; 3 L. 213; 5 L. 268; 43 Tex. 390.

      B. King Outler amd K. W. Gautier, on the same side.

      J. O. Ptgan, Attorney General, for the State, Appellee :
    1. Death by poisoning is murder. Blachstone, Vol. 4, p. 196; Archibald’s Cr. Pr. and PI., Vol. 1, p. 941, etc.
    2. It is unnecessary to set forth the manner in which, or the means by which, the death of deceased was caused, in an indictment for murder. R. S. 1048.
    3. Act 24 of 1878, and Sec. 789, R. S., treat of the crime of administering poison with intent to commit murder, and not actual murder by poisoning or otherwise.
    4. The accused is fully informed of the nature and cause of the crime charged when the indictment charges her with murder.
    5. "Where there is conflicting testimony as to the voluntariness of a confession made by the accused, it remains for the Judge a quo to decide the point and rule as to its admissibility.
    6. In ruling on the admissibility of such confessions the Court does not thereby pass upon the effect of such evidence.
   The opinion of the Court was delivered by

Todd, J.

The defendant was indicted for murder, and convicted of manslaughter, and appeals from a sentence condemning her to pay a fine of one dollar and to be imprisoned twenty years at hard labor, in the penitentiary.

The alleged errors complained of, on which the accused bases her claim for relief, are:

1st, the overruling of the motion in arrest of judgment; and 2d, the admission of the confession of the accused in evidence.

The motion in arrest of judgment contains the following grounds:

I. That the indictment is insufficient in form and in siibstance, because, under Article 8 of the Constitution of 1879, the said indictment did not give the accused any information of the nature and cause of the accusation.

2: That the indictment simply charged the accused with the crime of murder, when, according to law (Act 24 of 1878), and considering the proof adduced by the State on the trial of the cause, the indictment should have charged and specified that death ensued from administering poison by defendant.

' Section 1048 R. S., provides:

In any indictment for murder, or manslaughter, it shall not be necessary to'set forth the manner in which, or the means by which, the death of the deceased was caused; it shall be sufficient in every indictment. for murder to charge that the defendant did feloniously, wilfully, and of his malice aforethought, kill and murder the deceased.”

The indictment in question is framed in accordance with this section. The counsel for the defendant, however, contend that it is opposed to Article 8 of the Constitution of 1879, which declares, “ that the accused shall enjoy the right to be informed of the nature and cause of the accusation.” And, inasmuch as evidence was offered and received to establish that the death resulted from poison, that the mode or means of the death should have been specifically set forth in order to meet this constitutional requirement.

We cannot believe that this clause in the Constitution was designed to repeal or affect the statute referred to. It is true that the clause is not found in the previous State Constitutions, but, nevertheless, it is not strict^ an innovation, and introduced no new principle in criminal prosecutions, since its exact language is borrowed from the Sixth Amendment of the Constitution of the United States. It has been the subject of construction by the United States Courts. Thus, in the case of United States vs. Mills, 7 Peters, 142, it was construed to mean, that the indictment must set forth the offense with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged.” See also U. S. vs. Cook, 17 Wallace, 174.

The indictment in question certainly fills these requirements as thus authoritatively construed. The accused is apprised with all necessary certainty that the crime with which she is charged is murder. The error of comisel is in confounding the nature and cause of the prosecution with the manner of the death, or means or instrument used to produce it.

Nor does the Act of 1878, referred to. possess any significance or bearing on this point, for the reason that that Act does not. relate to murder, by poisoning or otherwise, but refers to the administering of poison, or other drug, with intent to commit murder or rape. It is a strictly statutory offense. The evidence to show that the death was caused by administering poison was properly admissible under the averments of the indictment.

2. In regard to the admissibility of the confession of the accused, it depended upon a question of fact, that is, whether the confession was voluntary or not. This question the Judge had to decide, with a view to determine its admissibility. It was a matter largely within his discretion ; and after hearing and weighing the evidence touching the character of the confession, he held that it was voluntary and admitted it.

Whether the confession was voluntary or'not, and admissible or inadmissible, under the evidence submitted, is a mixed question of law and fact, which we are authorized to review; the evidence on the point being set forth in the bill of exceptions.

Though this is the case, the ruling of a Judge of the first instance on a question of this character should not he disturbed, unless clearly erroneous. The presence of the witnesses before him, their manner of testifying, character, etc., offered an opportunity of reaching a correct conclusion in the point at issue, superior to any we posess. Our examination of the Record, although the evidence is conflicting, satisfies ns that his ruling in this instance was correct. •

The argument of counsel would make it appear that this evidence, touching the character of this confession, was heard by the jury, that the witnesses were examined on this point before them, inasmuch as they complain that the ruling of the Judge as to the admissibility of the confession required his passing on a question of fact, and the credibility of witnesses, in presence of the jury, to the prejudice of the accused. The Record does not show that the witnesses testified touching this confession in the presence of the jury, and if they did, as the Judge was hound to decide the question of the admissibility of the confession, a question depending solely on the character of the confession, whether voluntary or not, we cannot well see how the effect of that ruling on the jury, though it might bear incidentally on a question of fact pertaining to the main issue, or on the credibility of witnesses, was to be avoided.

We are unable to discover any errors in the proceedings.

Judgment affirmed with costs.

Rehearing refused.


author: Poché, J.

text:
    No. 7627.

    Hendley S. Bennett vs. The Mechanics’ and Traders’ Bank.
    By order of the General commanding the Department of the Gnlf, during the late civil war ‘ between the States, the defendant Bank paid to an officer designated in the order, a certain balance due to one of its depositors. Meld, that the depositor, not having repudiated the action of the Bank within a reasonable time after knowledge of it, (nine years in this case,) must be presumed to hare acquiesced in the settlement thus made of the said balance, aud has no right of action to recover it. The payment was made, in the premises, in Confederate money-
    APPEAL from the Fifth District Court for the Parish of Orleans; Rogers, J.

      Nicholls & GarroU, for Plaintiff and Appellee :

      1. The instrument sued on is an assignment or transfer to the extent of three thousand dollars. The facts show a complete-transfer to that extent. This is an assignment. 1 Bouv. 156, Ho. 8; 2 Ib. fiQ5; 1 Sandf. 416 ; 2 Hilt. 477; 6 How. (Miss.) 487; 5 George, 506 ; 12 M. 702.
    The instrument being an assignment, plaintiff can sue in his own name. 15 Aik. 491; 6 Yerg. (Tenn.) 512; 2 Pet. 239; 2 La. 89 ; 4 A. 303. ;
    2. Under an order of Gen. Banks directing the banks of Hew .Orleans to deliver up all moneys in their possession belonging to corporations in the Confederate States, defendant, in 1863,, surrendered $4,644 in Confederate currency, as the property of plaintiff’s assignor, who was entitled to receive specie, and not_Confederate currency, from defendant. A surrender of specie under this order would not discharge defendant. 21 A. 332; 16 Wall. 483. Much less could a surrender of Confederate currency avail to discharge the liability.
    3. Defendant’s plea that plaintiff’s assignor knew of the surrender of funds .to the Federal authorities, and, by its silence, acquiesced in such suri ender and ratified the action of defendant, cannot hold. The evidence shows that plaintiff’s assignor did not know for many years that Confederate currency had been given up ; that no word of approval or disapproval was over said; and that there was silence simply because it was thought that the money of plaintiff’s assignor had been seized by the United States government, and nothing could be done.
    This is not such acquiescence or ratification as would bind plaintiff’s assignor. To fix acquiescence on a party he must know clearly and exactly what he is doing; must know his rights in the premises and all the facts of the case. 13 L. 169, (176); 17 L. 286; 23 A. 538; Kerr on Fraud and Mistake, pp. 300, 301, There was no such knowledge here.
    4. The plea of the prescription of five years is not applicable. The instrument sued on is dated 29th January, 1875. This suit was filed 31st March, 1875.
    5. Defendant’s plea of ten years’ prescription is not well founded. Plaiutiff’s assignor kept an account with defendant. When defendant suspended specie payments in 1861, there was due plaintiff’s assignor $6,161.63 in specie. This sum defendant has never paid or accounted for. In July, 1865, plaintiff’s assignor asked a statement of account. One was rendered, showing that $4,644 had "been surrendered to the Federal authorities.
    6. How the relation between plaintiff’s assignor and the defendant was that of depositor' and bank, that is, that of debtor and creditor. Morse on Banking, p. 25 ; 17 A. 261; 20 A. 568; 2 Wall. 252 ; 5 Wall. 663. Consequently prescription would begin only from demand, (1 Sumner, 478; 2 Bailey, 51; 13 Wend 267; 9 Gill & Johnson, 439. (461;) 39 Penn. State Bep. 92; Morse on Banking, 31-33,) or from the rendition of an account showing that defendant no longer held the money for plaintiff's assignor, or from some áction of defendant showing that the money would not he paid, (Morse on Banking, 31-33; 15 A. 634; 14 A. 816.) The prescription of ten years, then, did not begin until July, 1865, and the account could be attacked for any error at any time within ten years. This suit was filed three months before the time expired.

      Singleton & Broione and B. W. Huntington, for Defendant and Appellant:
    I.
    We have shown that the relation between the Columbus Company and the Mechanics’ Bank was that of debtor and creditor. Morse on Banking, p. 25; 17 A. 261; 20 A. 568; 2 Wallace U. S. 252 ; 5 lb. 663.
    H.
    That the Mechanics’ Bank paid to Capt. McClure the entire balance standing to the credit of the Columbus Company, which payment was fully ratified, and thereby hound the Columbus Company. 3 An. 468; 16 La. 51; 18 La. 517; 6 An/538; 7 H. S.; 20 An. 215; 22 An 493; 24 An. 460.

      III.
    This suit is really and in fact on the check issued in 1860 or 1861; and as the Mechanic»’ Bank has not accepted said check nor passed it to the debit of the drawer, it cannot he sued on it. 10 Wall., IT. S. B. 152; 23 An. B. 49.
    IV.
    That prescription began to ran on all the deposits just as soon as the same were made by the Columbus Company in the Mechanics’ Bank. That suit could be immediately brought against the Mechanics’ Bank without any previous demand, and as the debt was due the prescription began to run. B. C. C. 2950; old C. C. 2045 -, 13 La. 258; 14 La. 259 f 13 An. 440; 11 An. 213; 20 An. 383.
   The opinion of the Court was delivered by

Poché, J.

The object of this suit is to recover $3,000 from the defendant, on a cause of action which can be more easily understood by referring to tbe following affidavit, draft or order, and assignment of the latter, which are made the basis of plaintiff’s action, and which we reproduce in full.

Affidavit.

State of Mississippi, ? Lowndes County. £

Before me, J. Stallings, Clerk of tbe Circuit Court of said county, came personally, Nathaniel E. Goodwin, who is well known to me, and being duly sworn, says: that be has been the cashier of the Columbus Insurance and Banking Company of Columbus, Mississippi, for many years, and that be still bolds that position; that as sucli officer be has sold and issued to Mr. John M. Morgan, at various dates, sight drafts or checks on his correspondent in New Orleans — some of them for large sums; that from a period prior to the year 1860, to the present time, his correspondent in New Orleans was the Mechanics’ and Traders’1 Bank; that all such drafts or checks were addressed to and drawn on said bauk; that a careful record and account of same was kept by retained stubs and other memoranda, needful to insure a proper description of same, and suitable credits to tbe bank so drawn upon; that owing to tbe loss of the stubs and other memoranda so kept — at tlie burning of many business bouses in Selma, Ala., when occupied by the Federal army, where bis books' and papers bad been stored as a supposed place of safety — tbe affiant is unable to ascertain dates, numbers or specific amounts of any drafts or checks drawn by him, on said bank (in New Orleans) from some date prior to tlie year 1860, till after the surrender or cessation of tbe hostilities; that during such time no draft or check was predicated and drawn upon any other basis than tlie balance shown by Ms book to be due by that bank.

Affiant further says: That on or about tbe 21st day of April, 1862, lie sent a special messenger to New Orleans with his draft on said bank for the sum of thirteen thousand dollars, which was promptly paid, hut that the payment of this draft or any other draft or cheek, drawn by him, did not in any particular interfere with or diminish any moneys in the hands of said Nerv Orleans correspondent needed to pay outstanding checks or drafts, and that all such money remained there till after the city of New Orleans was taken possession of by the Federal forces. After that, he is advised that said bank paid over, pursuant to a certain order emanating from them, all moneys remaining in said correspondent’s hands, by reason of the non-presentation and consequent non-payment of outstanding checks or drafts; that the sum so paid was about four thousand dollars.

Affiant further says : That from memoranda shown him by Mr. John M. Morgan, in the year 1870 or 1871, he had reason to believe, and that he does still verily believe, that in the year 1860 or 1861, he sold and issued to said Morgan, at least one draft, for three thousand dollars.

Finally, affiant says: That those things stated in this affidavit from memory, he verily believes to be correct, and that such as are derived from memoranda of his own, or others, are in accordance therewith. N. E. Goodwin.

Sworn to and subscribed, before me, February 9, 1875.

J. Stallings, Clerk.

Draft or Order.

Columbus Insurance and Banking Company, ? Columbus, Miss., January 29, 1875. $

Moses Harris, Esq., Cashier Mechanics1 mul Traders1 Bank, New Orleans, Louisiana :

Having reference to the facts set forth in the foregoing affidavit, you' are hereby authorized and directed to pay to John M. Morgan, or order, three thousand dollars, part of balance iii your hands at our credit at the occupation of New Orleans by the Federal forces in April, 1862; provided, there shall not. have been presented, and paid, our original draft on you in favor of said Morgan for same amount, alleged to be lost.

You are also hereby notified, that if is understood by said Morgan, and ourselves, that the payment of this order cancels and satisfies the original and missing draft of three thousand dollars. And, furthermore, that no recourse is, in any event, to be had or claimed of or against this institution. N. E. Goodwin, Cashier.

Endorsement :

Without recourse on me, pay to H. S. Bennett, or order.

John M. Morgan.

After pleading a general denial, the defendant avers its want of responsibility on the first draft, for want of privity thereto, and sets forth a payment under compulsion of the Military Authorities of the United States, to said authorities of the balance in its possession to the credit of the Columbus Bank, in September, 1863, and the subsequent acquiescence of said bank in such payment, and it further sets up the plea of prescription of five and ten years.

This appeal is taken by the defendant from a judgment in favor of plaintiff for the full amount of his claim.

The questions presented by the pleadings are not free of difficulty, both on the facts and on the law of the case, and have necessitated on our part a very patient and thorough examination of the evidence in the Record, and a close study of all the authorities referred to by counsel on both sides, and this investigation has led us to the conclusion, that there is error in the judgment of our learned brother of the District Court, who should, in our opinion, have sustained the defense resting on the alleged payment by compulsion to the United States Military Authorities, and the subsequent acquiescence of the Columbus Bank in such payment.

We accept the theory of plaintiff, which is strenuously resisted by defendant, that his right of action in this cause is as ihe assignee of the Columbus Bank, up to the amount of three thousand dollars, of such balance as stood to the credit of the Columbus Bank in the defendant Bank at the date of the occupation of New Orleans by the United States Military Arrthorities, in April, 1862, and that he is clothed with full power to enforce all the rights of the Columbus Bank to such balance, and that he is subject, on the other hand, to all the defenses which could be successfully urged against that bank, his assignor.

As we read the Record, we find the following facts as bearing on that part of the defense which we have concluded to sustain :

■ For several years previous to, and during the first years of the late civil war, the defen dantwms the New Orleans correspondent of the Columbus Bank, collecting its remittances by drafts or other money orders, and paying out the same on its orders, and thattouching such funds thus collected and thus paid out, the relation between the two banks was that of creditor and debtor. Hence it follows, that all drafts or checks of the creditor bank, on the defendant bank, previous to the 16th of September, 1861 — after which date all the banks situated in localities subject to confederate authority or rule, were compelled to pay nothing but Confederate notes — were to be, and were actually, paid in the currency of bank notes, equivalent in value to gold.

Therefore, after the order compelling the payment in Confederate notes alone, the funds of the defendant’s creditors became mingled with its own funds, and checks subsequently drawn were against the balances due on the 16th of September, 1861, made payable in Confederate notes, under the same account which had been kept previous, and up to said date.

Hence, we hold that plaintiff and the District Judge were in error in contending that the balance of $6,161.63, to the credit of the Columbus Bank, on the 16th of Sei>tember, 1861, was a gold or specie balance, which should have been kept separate and distinct from the transactions carried on between the two banks immediately and subsequently thereafter; and that they were in error in crediting all subsequent collections made by the defendant to the separate1 account for Confederate notes, and in debiting to such account the checks or orders of the creditor on the debtor bank, by which process of calculation and reasoning, they reached a result showing that in May, 1863, the Columbus Bank was, a debtor to the Mechanics’ Bank in Confederate money in the sum of $1,517.65, and a creditor to the same in specie in the sum of $5,161.93.

Such was not the legal effect of the order emanating from the ruling or governing power at the time, and such was not the understanding of the parties.

As assignee of the Columbus Bank, plaintiff must be bound, and his rights are therefore controlled, by the previous acts of his assignor. Now, in a letter written on tire 18th of July, 1865, to the defendant by N. E. Goodwin, the cashier of the Columbus Bank, touching the very matters now at issue, we find the following language: “Your debit balance as shown by our ledger is, and has been from that time (April 24, 1862,) $1,855.83 ; will you have the goodxress to refer and render such statement as may seem needful, designating balance that may remain subject to my checks,” etc.

In making out the balance, Mr. Goodwin had credited the defendant with the check of $3,000, held and lost by plaintiff, and in its account the defendant 'had not taken credit for that check, which had never been presented; and thus it appears that the two accounts agreed to a few dollars, and hence we see, that the continuous account, as kept by the defendant, without discriminating between a specie and a Con- • federate basis, was understandingly concurred* in by its creditor, and hence we conclude, that in September, 1863, when the seizure was made by tire military authorities the debit balance of the defendant was the sum of $4,644, as urged by defendant.

The Kecord shows that after the 16th of-September, 1861, the two corporations continued their previous dealings; that large remittances, •including several drafts on the Confederate States Treasurer, were collected in Confederate money by the defendant, and that a long series of drafts of the creditor bank were paid in the same currency by the defendant, to the knowledge of the Columbus Bank, and that on the 24th of April, 1862, a payment of $13,000 in Confederate money was made to, and accepted by, the creditor bank, through an express messenger, sent for the purpose, and that on May 23d, 1863, a check of the creditor for $2,000 was paid by the defendant in the same kind of currency; and the conclusion is irresistible, that if at that time the creditor had sent a messenger to withdraw its final balance, a payment of the said balance would have been made in Confederate money, and that such a payment accepted by the Columbus Bank, or its agent, would have closed its account with the defendant.

This conclusion rests on a doctrine which is settled by the jurisprudence of the country, too well and too generally known to require any special reference of authority in its support.

The question remaining for solution is, therefore, whether the Record discloses a settlement or a payment of its debit balance by the defendant, equivalent to the payment which is predicated in the foregoing hypothesis.

The payment set up by the defendant was made to the quartermaster of the department in which New Orleans was situated, under and in obedience to an order emanating from the commanding general, under date of August 17, 1863, requiring all banks in this city to pay over to the quartermaster all monies in their possession or having upon their books to the credit of any corporation * * * in hostility to the United States; ” and this payment is evidenced by the following receipt, bearing date September 10,1863, signed by the officer designated under the order for the purpose of receiving such payments, as follows:

Received, New Orleans, September 10, 1863, from the Mechanics’ and Traders’ Bank, pursuant to special order No. 202, forty-eight thousand four hundred and fifty-five and 78-100 dollars in Confederate notes, being the aggregate amount of the balances held by said Bank to the credit of the several banks named in the following list, located in the so-called Confederate States, in the amounts respectively affixed to each: Columbus Life and General Insurance Company, $4,644.00; Bank of Memphis, $43,T64.17; Bank of Richmond, $67.16; Wetumpka Insurance Company, $584.45,

Signed; Jno. W. McClure,

“ Capt. A. Q. M.”

But plaintiff urges that this settlement is absolutely null and void, first, because the order of the commanding general was issued without authority, and secondly, because the debtor of a specie balance, cannot be legally discharged by a payment made in Confederate money.

His first proposition is sustained by tbe decision of tbe Supreme Court of the United States in the case of Planters’ Bank vs. Union Bank, 16 Wal. 483, in which a similar order, emanating from the same general, was declared a nullity, and in which it was held that a payment made thereunder did not satisfy the debt.

We are free to confess that if the question were a new one, we would feel constrained to reach a different conclusion; and that guided by the light of the sad and gloomy history of the times, when the will or the edict of a general commanding a department, comprising a conquered territory, backed by a large army, and by the terrors of a dungeon on a barren and desolate island, was the only law of the land, to resist which the people were powerless, we would hold that a payment made under such pressure and compulsion would, in legal effect, be equivalent to a payment, made to the creditor; but we bow in respectful submission to the mandate of that exalted tribunal.

In support of his second proposition, plaintiff relies upon . the decision in the case of Nelligan vs. Citizens’ Bank, 21 A. 332, where it was held that a payment made in obedience to a similar order, in Confederate money, could not discharge the bank, unless it was shown that the deposit had been made in that currency.

In that case, in which the order of the general commanding was recognized as binding, the amount claimed by plaintiff was a single deposit made by a cheek in his favor, and the evidence did not show that the funds collected by the bank on the check were Confederate notes.

This feature strikingly differentiates the case from the one at bar, and cannot therefore determine the issue which now concerns us. .

Admitting, therefore, under the authority of the case in 16th Wallace, that the payment made under order No. 202, was not a legal payment, we have before us the undisputed fact, that the debit balance due by the defendant, was paid over to the military authorities in obedience to, and in full convpliauoe with the orders of the commanding general, and that such payment was accepted by the quartermaster. The order to the Mechanics’ Bank was to pay over to the quartertermaster the balance due to the Columbus Bank, and the officer certifies that he received payment of such balance in Confederate notes.

Admitting that the person who received such payment was not properly authorized thereto, and was not. invested with all the rights of the creditor, we must now consider whether, by any of its acts or conduct., the Columbus Bank could be held legally bound by such payment. -

From the Becord we gather the following facts: That through the press and through other sources, Mr. Goodwin, the cashier, knew during the war that seizures had been made in New Orleans by the Federal authorities, of all the balances due to banks and other corporations situated within the Confederate lines.

On the 18th of July, 1865, he writes to defendant for the purpose of inquiring into the state of his account. On the 25th of July following, he is answered, that on the 10th of September, 1863, his balance, which was $4644, was paid over to Capt. McClure, U. S. A., under the compulsory effect of order No. 202. Now, under the light of this litigation, one would naturally expect from Goodwin, an answer repudiating such a payment, and holding the defendant responsible for his balance thus wrongfully disposed of; buthfar from it we find in his answer the following words, as the only reference to the subject:

“ Your prompt favor of the 25th inst., covering statement of account is to-day received. Captain McClure, U. S. A., under and by virtue of order 202, hit its a very dirty Hole, when he took our ledger balance at your bank, ($4644) as in this was included near $3000 of outstanding check.”

After this follows a friendly and a business correspondence between the cashiers of the two banks, in which the Columbus Bank asks and obtains from the defendant, useful information on divers subjects. In a letter of Goodwin’s, of October 11th, 1865, he says to defendant:

“ I doubt not that ere this, the effort has been made by some of the banks who lost their balances in your city, under the operation of order No. 202, for their recovery. Will you please advise me as to their progress or prospects 9”

We hold the language in the first quotation as indicating no desire to repudiate the settlement, but as justifying the belief that, in the opinion of the writer, the Columbus Bank, and not the defendant, had been injured by the act of the military axithorities, and as justifying the construction of such language as an acquiescence in the settlement reported by the defendant, and that the language in the second quotation, indicates an unmistakable acquiescence in the reported payment, and a conclusion that the Columbus Bank saw no prospect of recovery but in the supposed effort to be made by the banks in this city.

Later, in March, 1866, the Columbus Bank, re-opens an account with the defendant on the same basis, but which, in the language of its cashier, is to be wholly distinct from the former account involving Confederate issues.”

In a letter of March 26, 1866, the same officer says to the defendant: il I need hardly remark that any outstanding checks by me upon your bank, (say for convenience) prior dates to this month are not to be paid from any balance created by thease recent remittances.”

We construe this language as clearly meaning that the former account was finally and irrevocably closed.

We have carefully read and considered all the correspondence, and searchingly scanned and analyzed all the business dealings and transactions which took place .between these two banks for a long series ' of years following the knowledge imparted to the Columbus Bank, of the payment made by the defendant of its balance, and we fail to discover a word or a single action indicating the remotest intention on its part to repudiate that settlement or payment.

Under the miles of law so uniformly expounded in our jurisprudence by an unbroken line of decisions, which we have diligently studied, we hold that the Columbus Bank, having full knowledge of the settlement made of its balance by its debtor, has by its omission to repudiate such settlement, and by its silence, lasting more than nine years, fully acquiesced in and ratified such a settlement, and is now debarred of any right to claim an account of the defendant, its former debtor.

The argument of plaintiff, básed on the alleged ignorance of the bank, that the payment had been made in Confederate' notes, and on the ground that its silent acquiescence, based upon the belief that the payment had been made in specie, which was an error, and therefore not binding, as a means of escape from the legal consequences of such' an acquiescence, is answered in a statement made in his testimony by Mr. Goodwin, who in answer to an interrogatory, says:

“ With regard to the kind of funds in which said balance was paid,I have always understood that it was paid in Confederate State notes. IIow I came to this conclusion, I cannot just now specifically state.”

And by frequent acknowledgments in his letters, that the former-account between the two banks involved Confederate issue.

Our conclusion is that the fact, and all the details of the settlement were known to the Columbus Bank with sufficient certainty to place it-under the effect of the very rule invoked by plaintiff, as laid down by “Kerr on Fraud and Mistakes, pages 300 and 301,” as well as under the rule laid down by our own Supreme Court, in the following cases: Flower vs. Jones et al., 7 N. S. 143; Dupré vs. Splane, 16 L. 51; Starr vs. Zacharie, 18 L. 517 ; Bonneau vs. Poydras, 2 R. 1; Ward vs. Warfield, 3 A. 468; Flower vs. Downs, 6 A. 538 ; Margum vs. Bell, 20 A. 215 ; Ball vs. Bender, 22 A. 493; Oliver vs. Johnson, 24 A. 460.

In the case of 3 A. hereinabove quoted, it was held that the acts of an agent who had committed a breach of orders; will bind the principal, if he subsequently, and with full knowledge, assents even for a moment to the acts of his said agent.

The same rule applies to payments made by a debtor, of moneys held by him for account of his creditor. Under these views we find no necessity of passing upon the other defenses urged by the defendant.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be annulled, avoided and reversed, and that there be judgment in favor of defendants, rejecting plaintiff’s demand at his costs in both eourts.

Rehearing refused.


author: Todd, J. Lew, J.

text:
    No. 7225.
    David Hearn and Wife vs. The St. Charles Street Railroad Company.
    The driver of the car which ran over plaintiffs’ infant child and killed him. was guilty of no negligence or fault, under the circumstances of the case, and the Company cannot he held responsible.
    APPEAL from the Fourth District Court, for the Parish of Orleans. Houston,' J.

      Wm. F. Méllen and J). O. &L. L. Lcibatt, for Plaintiffs and Appellees :
    1. The child, John Hearn, aged 22 months, was struck down, severely injured and almost instantly killed, on the 21st day of September, A. D. 1877, in the City of New Orleans, by car No. 66, of defendant, driven by a driver in the employ of defendant in its ordinary course of business.
    2. The plaintiffs are surviving parents of the child so killed, and as such, are entitled to recover of the defendant damages for all injuries to the child, and for its death.
    3. The evidence shows a clear case of negligence on the part of the driver of the car, the employe and agent of defendant.

      4. The question of contributory negligence does not enter into this case, and the doctrines arising therefrom have no application to the facts disclosed by the evidence. 60 "Mo. 483; Morgan vs. 111. and St. L. Bridge Co., (quoted in the body of our brief); 65 Pa. St. 269 j and other authorities cited in our brief
    5. Even if the child had been instantaneously killed, the right of action must have survived to the parents. A contrary view is unsupported by a reasonable construction of the statute, and the law of which it was an amendment, and is moreover contrary to public policy and good morals. C. C. 2315; Frank vs. N. O. and C. R. B. Co., 20 An. 25.
    6. But the child was not instantaneously killed. Though unconscious when inched up, it still lived. (11 Allen, Mass. 34.) Besides it had been injured by being knocked down by the mule attached to the car before it was struck and run over by the car wlicels.
    7. The court did not err in referring in its instructions to a conductor of the car. This branch of the instructions was rendered necessary by the defendant’s introducing in evidence the city ordinance requiring the various street car lines of the c.t.y to keep hoys from hanging on the rear of the cars, and the argument of counsel on both sides thereon. Nor did the court err in any part of its instructions* or in refusing the insti notions asked for by defendant. See reasons of the court for admitting this ordinance in evidence. (Bee. 66, 67.)
    8. If, from the facts of the case, the conclusion of the jury was correct, their verdict will not be set aside, even though the court might have erred in its instructions.
    9. The jury found for plaintiffs and assessed the damages at §2,000, a remarkably reasonable sum, and in cases of this kind great discretion as to the amount is left to the jury. Frank vs. N. O. and C. R. R. Co., 20 An. 27; C. C. 1934, Sec. 3.

      Bremix & Hall, for Defendant and Appellant:
    i.
    The driver of a street car which kills a child, is not guilty of negligence when it was physic* ally impossible for the driver to see the child in the position in which it had placed itself without his fault. 47 Ills. 267; 69 Ills. 472; 88 Penn. 520; 11 Wright, 300; ,23 An. 729.
    II.
    Children can be guilty of contributory negligence to the same extent as adults, and are chargeable with the contributory neglect of its parents. English cases,- 9 Exch 302; El. Bl. & El. 719; 7 C. B. N. S. 287; 2 H. & C. 744; L. R. 1 Exch. 239; American cases, 8 Gray, 123; 4 Allen, 283; 21 Wendell, 615; 29 Barbour, 234; 36 Barbour, 230 ; 49 Barbour, 529; Court App. 2 Abbott, 378; 60 N. Y. 333; 14 Barbour, 585; 33 How. Pr. 193 ; S. C. 1 Keyes, 570; 38 N. Y. 455; 57 Penn. 172; 28 Ind. 287, 513; 42 Ills. 174; 47 Ills. 66; 30 Md. 47 ; Y. Shearman & Redfield on Negligence, §49.
    III.
    When a child is not chargeable with contributory negligence of parents in its own case; aliter when the parent sues. Pierce on Railroads, p. 338, note 1; Field on Damages, p. 186, §§195, 196 and notes; 26 An. 591; 30 Md. Rep. 47; 49 Barbour, 529 ; 21 Wendell, 615; 24 Ohio, 670; 57 Penn. 174; 4 Allen, 287; 8 Gray, 123; 36 Barbour, 230; 29 Barb. 236.
    IY.
    Corporations not liable for exemplary damages of employes. 11 An. 292; 34 Cal. 594; 19 Mich. 305; 10 Wis. 395 ; 57 Penn, St. 339; 19 Ills. 353; 19 Ohio, 110; 35 Penn. St. 60; 47 N. Y. 122; 40 His. 503; Field on Damages, § 83 et seq.,.6Z0 and notes; 13 La. 445, 47 N. Y. . 282; 40 Cal. 657; 34 Cal 594; 10 Wis. 388; 3 R. I. 88; 26 Ind. 70; 32 N. J. 254 ; 49 N. H, 358 ; 30 Met. 311.
    Y.
    No pecuniary damages sustained by instantaneous killing, or by a nearly instantaneous death preceded by'unconsciousness. 125 Mass. 90, 93; 9 Cushing, 108; 6 Caldw. Tenn. 45.
   Tlie opinion of the Court was delivered by

Todd, J.

This is an action for damages, brought by the parents of a child, killed by being run over by one of the street cars of the defendant company. It is charged, that the death of the child was the result “ of the fault, carelessness and gross negligence of the driver of the ear ; that the damages caused by, or growing out of, the injuries and sufferings of the child, amount to ten thousand dollars,” and the right of action therefor, by the death of the child, was transmitted to its parents, the plaintiffs.

The answer was a general denial. The case was tried before a jury, who returned a verdict against the defendant for $2,000, and from the judgment thereon this appeal is taken.

The plaintiffs, to be entitled to recover in such an action, must first establish that the death of. the -child- resulted from, or was caused by some fault or negligence on the part of the defendant or its employee. Unless this is proved no further inquiry need he made.

The facts connected with, or hearing upon the question at issue, are substantially as follows: •

Tlie house occupied by tlie plaintiffs and their family, was situated on the street on which the cars of the defendant company ran. On the 21st of September, 1877, the child killed, aged about 22 months, and its little sister, aged about four years, were left by their mother on the door stops, fronting the street, whilst she, the mother, was preparing the evening meal. The front door of the house whore the mother was employed, communicating with the kitchen, was shut. As the car in question was passing near, or in front of the house where the children were sitting, some boys ran up and jumped upon the steps in the rear and swung to the car. Thereupon, the driver stopped his mule, fastened the brake, and proceeded to drive the boys from the car. Whilst thus engaged, the youngest child mentioned-left its place on the steps, went to the corner of the street, about 30 feet distant, and from there into the street, and placed itself under the neck of the mule and against the animal’s foreleg. The driver returned to the platform, and without seeing the child, released the brake and started the mule; the child was thrown under the wheels of the car, which passed over its body, killing it instantly.

The evidence sho-ws, from the position of the child, the driver looking in the usual direction, straight forward, could not see it; and, as stated by one of the witnesses, he could only have seen it by stooping over. It must be observed that, under a city ordinance, the driver was required to prevent children from swinging or hanging to the steps of the car; and in stopping the car; leaving the platform, and driving away the boys mentioned, he was but discharging a duty imposed on him. Had he kept the car moving whilst thus engaged, and any one been injured, he could justly be charged with carelessness. He seems, however, to have discharged this duty with proper care, in stopping the car, fastening the break, driving away the boys, returning to the platform, and starting his mule. Nor do we attach any significance to the fact dwmlt on by plaintiff’s counsel, that the animal was stopped at or near the street crossing. This of itself did not cause the accident or have any direct bearing thereon. Had the car been in motion and ran over a person passing along the crossing, without due care being exercised by the' driver, there would have been culpable negligence; but the mere stopping- the mule there, and the animal remaining motionless then, did not of itself impart danger to any one, or was calculated to inflict injury; and the child injured was not at the time engaged in crossing the street, and was not using the crossing for that purpose, but was evidently actuated by a childish wish to go to the mule, and would doubtless have done so, whether the animal was at the crossing or not, provided that it was within reach.

In all this we can discover no fault or negligence on the part of the driver. He had no reason to suspect that any thing had transpired during ids brief absence from the platform to call for any extraordinary vigilance on his part. However long his experience might have been as a driver of a street car, there was nothing in the whole of that experience to suggest to him the faintest suspicion that starting his mule again, would hurt any one, or that a child was actually at that moment under his mule. A driver can only be justly charged with negligence, when he fails to observe something that he ought to see, and would see with ordinary vigilance; when he fails to be prepared for something visible, or at least of probable occurrence, or that might reasonably be expected to happen. For instance, if he had run over children playing in the street without making every possible effort to avoid it, or if he drove rapidly over aplace where children were usually at play, without looking to see whether they were there or not, and one or more of them should have been hurt, then the charge of carelessness could be justly charged.

This view of the subject is not only reasonable but is supported by legal authority. 47 Ill. 267 ; 69 Ill. 472; 88 Penn. 520; 11 Wright, 300.

There being no fault or negligence imputable to the Company or its employees, there was no liability incurred on account of the unfortunate accident, deplorable and distressing as it was.

This view of the case dispenses us from considering two other legal propositions, earnestly and ingeniously discussed by counsel; one relating to contributory negligence and the other to involving the interesting question, whether any right of action could exist and be transmitted, where the death was instantaneous.

For the reasons stated, we thiuk the judgment appealed from was erroneous.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be annulled, avoided and reversed, and that there be judgment rejecting plaintiff’s demand with costs of both courts.

Mr. Justice Fenner recuses himself, having been of counsel.

Mr. Justice Levy dissents.

Dissenting Opinion.

The. opinion of the Court was delivered by

Lew, J.

I respectfully dissent from the opinion of the majority of the Court in this case. My reasons for this dissent are briefly these:

I do not consider there was any contributory negligence on the part of the child or its parents.

I think there was negligence on the part of the Railroad Company. The car was stopped by the driver at or near the crossing of the street. The Company had, it is true, imposed upon the driver the duty of preventing boys and others, from swinging on the rear of the car. To accomplish this, the driver had stopped his car and gone to the rear of his car. In the meantime, the small child, about two years old, who had strayed from its parents’ house near the point where the stoppage occurred, and being unseen by the driver, he looking towards the rear and not in front of him, put the car in motion, which ran over and killed the child.

Proper precaution on the part of the Company might have avoided this lamentable calamity. '

It is the duty of such companies to adopt proper precautionary measures to prevent such occurrences. If, either through indifference or actuated by a parsimonious spirit, the Company failed in this instance to provide these precautionary measures, it was guilty of negligence, and should be mulcted in damages. The prpper post of the driver was in front of his car; there lie could see all obstacles, in front; could control the movements of the car, and be in a position to check it and protect street passengers from danger.

The Company failed to do its duty in regard to the matters mentioned, and I think, in view of such negligence, became liable for damages in this case.

Wayfarers on the public streets have rights which street railroad companies are bound to respect. It is, in my opinion, their duty to adopt prudent means, even if they involve an expenditure of money, whereby with care and proper vigilance and diligence, accidents may be generally prevented. .

Rehearing refused.


author: Bermudez, C. J.

text:
    No. 8168.
    A. G. De L’Isle vs. Succession of J. M. Moss.
    Where payment of a sum duo by a vendor, is assumed by a purchaser as part of the price of sale, the creditor whose debt is thus assumed, is entitled to claim the vendor’s privilege when seeking payment of his debt. •
    APPEAL from the Civil District Court for the Parish of Orleans. ’Lazarus, J.

      Alfred Grima, for Plaintiff and Appellant:
    Third persons alone may avail themselves of the want of inscription of mortgages: neither the contracting parties nor their heirs can take advantage of the non-inscription of a> mortgage. C. C. 3342, 3343, 3344 ; 7 An. 100 and 776.
    When a purchaser, as a part of his purchase price, assumes the payment of a note of his vendor, the obligation resulting from such assumption is peí sonal, and falls under the ten year prescription. 32 An. 283, Scionneaux of Waguespack et al.

      The assumption by a purchaser, of a note of his vendor secured by mortgage on the property acquired by him, as part of his purchase price, gives rise to a vendor’s privilege, growing out of the nature of the contract, and of which any holder of the said note may avail himself. It. C. C. 3249 and 1890; 7 Rob. 44; 17 A. 256; 24 A. 381; 3L A. 410; 32 A. 283; Laurent XXX., p. 6, §2; p. 11, § 9; p. 18, §16.
    It is only to aifeet third persons that an act containing a privilege must be recorded. R. C. C. 3273.
    The denial of ownership of a note is not.a defense calling for any proof of such ownership by - the plaintiff; the defendant must specify a good defense against the real owner. 30 A.' 680, Klein vs. Buckner.

      A. Mi eo n and A. G-oldlhwttiie:

    1. Vendor’s privileges exist only for the unpaid portion of the purchase price. They exist only by the operation of the law. They are the creatures of the law, under Art. (3216) 3249, Civil Code, and cannot he extended by implication or analogy or convention of parties. Aits. 3185, 3186, 3312, 3249, Civil Code ; State of Louisiana vs. Citizens’ Bank,' 33 An. «06 $ Scionneaux vs. "Waguespack, 32 An. p. 287; Hennen’s Digest, p. 1238.
    2. The origin, cause or raison of the vendor’s privilege, as defined by Laurent, Vol. XXX., p. 6, § 2; p. 18, § 16, is the crucial test to determine the privilege. It is the acquisition, by the purchaser, of the vendor's properly, to the increase and enrichment of the buyer’s estate, that causes it; therefore, the vendor has his privilege for the unpaid cost price of his property so acquired. But this raison or cause of the law can exist only for the rights of the vendor so transferring his property, and when other parties claim it, the raison of the law does not extend, and the maxim of cessante ratione legis cessat ipsa lex fully applies against them. Laurent, Vol. XXX., p. 6, §2; p. 18, §16; Broom Legal Maxims, p. 100,
    3. The simple assumption of an ordinary mortgage of the vendor hy a purchaser of property cannot change the original obligation or character of the mortgage and create a vendor’s privilege in favor of the mortgage, creditor, wheic none existed under his mortgage.
    4. The ordinary mortgage creditor can have no greater or higher rights against the purchaser of property who has assumed the mortgage, than those created by his mortgage, and which he possessed thereon, against his original debtor. The nature and character of his obligation cannot be changed hy the assumption of the debt — he has no greater rights against the assumes than, he had against his first debtor. Such a change in his debtor does not increase his rights. They remain the same, and no vendor’s lien can thus be created in his favor,
    o. The assumption of and promise to pay the debt of the vendor, made in the act of sale, as a part payment of the purchase price, and accepted by the vendor, if accomplished and not invalidated, is a ’payment pro tanto to the vendor, on which no vendor’s privilege exists, under the law of vendor’s privilege. Art. 3249, C. C.; Domat’s Lois Civiles, Part L, Book in., T. 1, Sec. 5, § 4; 6 Mar. X. S. 638; 2 Mar. X. S. 149; Pothier on Sale, Sec. Ill, §30.
    6. Thc^creditor whose debt is assumed, is not a vendor, or holding a vendor’s rights or title. His lights in this sale, to which he is not a party, arise solely under the assumption in the stipulation pour autrui therein, which gives and defines them, and are not beyond it.
   The opinion of the Court was delivered hy

Bermudez, C. J.

The only question presented on appeal in this case for determination, is simply:

Whether the payment of a mortgage debt, assumed hy a vendee, as part of the price of sale, is or not secured hy vendor’s privilege on the property sold.

By Article 3126 of the Code of 1825, in force of the date of the sale and assumption, and which is Article 3249 of the R. C. C., it is clearly provided, that the payment of so much of the price of sale as remains unpaid, shall be secured by the vendor’s privilege.

■ If the note now sued on were one subscribed by the purchaser, there would probably have arisen no difficulty, even as against the present plaintiff, who is not the vendor, but a mere holder and owner of a note of his, for having acquired the same through others, from the original mortgagee, by transfer and subrogation.

The objections made to the vendor’s privilege claimed, are grounded upon the charge, that the amount claimed is not a debt created at the time of the sale, and due to the vendor, or to one of his authors; but that it is a debt which existed prior to the date of the purchase, in favor of one who was not a vendor and who was not a party to the act.

In demonstration of- the soundness of this distinction, it is asserted, as a test, that if the creditor whose mortgage debt had been assumed as part of. the purchase price, remained unpaid, he could not seek and obtain a resolution of the sale, in the exercise of the right vested in a vendor, by the reserve of the resolutaxy condition.

The privilege accorded for the payment of the unpaid price of sale, is one of great value, resting on considerations of the plainest equity. It would indeed be unjust to place an unpaid vendor on a footihg of equality with the other creditors of the purchaser, and permit these to devour his substance; for it is only on the condition that the price of the thing sold has been paid, that the purchaser acquires an indefeasible title of ownership to the property, and that Ms creditors can be paid.

This privilege was unknown to the old Roman Law, as also was the resolutary condition. It is of G-allic creation. The modern civilians say that it adheres to the entrails of the thing. After delivery, the old roman law abandoned the vendor selling on credit to the good faith or mercy of the purchaser, and declined a resolution of the sale in case of non-payment of the price, unless the paettmn commissarium had been expressly stipulated.

It confers rights of a high character, superior to those which How from a mortgage. It entitles the vendor, at his option, either to specific performance in exacting payment, or to a resolution of the sale and taking back the property, free from all encumbrance by the vendee. It protects Mm from contribution towards the expenses of the liquidation of the estate of the purchaser in case of his death, or insolvency. It shields him from the claim of a. widow, of minor children, or of both for a homestead. It springs from the very nature of the coiitract of sale, of which it is a legal concomitant. It exists without stipulation, and adheres tenaciously to the thing sold.. It is invariably considered as retained, unless renounced in language unmistakably clear, or by acts evidently designed to destroy effectually the presumption of its retention. It exists and continues until satisfaction, to secure the payment of the unpaid price, whether an entirety or a fraction. ■ 3 A. 600; 4 A. 31-3; 32 A. 828.

It is the price which is protected by the privilege. By the sale the vendor increases the estate of the purchaser. It would be iniquitous to permit, the property sold to become the prey of the creditors of the purchaser, without requiring, as a condition precedent, the payment of its costs. Laurent 30, p. 6, $ 2; p. 18 $ 16; Troplong, Priv. and Hyp. on Art. 2096, p. 25; on Art. 2103, p. 333.

The word price signifies the sum stipulated as the equivalent of the thing sold and also every incident taken into consideration for the .fixing of the price, put to the debit of the vendee, and agreed to by him. Troplong, Priv. and Hyp. on Art. 1552, p. 65, No. 595 ; Laurent 30, p. 11, H 9,10. Pont. Priv. 1, Tit. 28, H 190,145, 187.

Both on principle and practically, it is a matter of indifference to the purchaser to whom the price be paid, whether to the vendor, or to his creditors, or to his beneficiaries. His obligation is to pay the price agreed upon, to whoever can, on payment, give him acquittance and discharge. His assumption to pay it to a third person, makes him personally liable to the creditor, on his acceptance of the assumption.

Where the purchaser assumes to pay a mortgage debt of the vendor, the creditor has the right of proceeding against him directly.

Where the mortgage debt has not been assumed it is so well secured that the suing creditor would rank the vendor of the previously mortgaged property. The creditor is under no obligation to accept the assumption, but he may do so until he has declined it. Dnranton, vol. 10, Ed. Brux, 1134, p. 234, No. 26 ; Monrlon, vol. 3, i>- 497, No. 1249; Marcadé on Art. 2098, p. 19, III No. 26; 2 N. S. 32; 12 L. 184; 8 A. 267, 758 ; 26 A. 618 ; H. D. 255 ; L. D. 442 ; 21 Wall. 123.

The debt due by the vendor in the present case and secured by preexisting mortgage on the property sold, became guaranteed by the vendor’s privilege, the very moment that it was, by covenant, to form an integral part of the price of sale. Tire privilege was then created by law, not by the consent 'of parties, to secure the price thus made up? and agreed upon; but it conditionally existed in favor of the mortgage creditor, who could either ignore or accept the assumption and stipulation. By the fact and at the instant of acceptance, that creditor. acquired tlie right to ask payment of his debt -with the vendor’s privilege, as effectually as he could have done, had he been the holder of a note of the purchaser, furnished in settlement of the price of sale.

Whether by thus accepting the stipulation, he has lost a priority over the vendor, is a question not presented, and on which we express no opinion.

We do not regard the subject of this controversy as a novel one, altogether.

In the Succession of Fergusson, 17 A. 256, the facts had occurred that Allen, who had mortgaged certain real estate to Fergusson to secure payment of a loan of money, evidenced by his notes, sold the property to his creditor, who assumed, as part of- the price, the debt and the mortgage. At the death of Fergusson, the owner of the notes originally due by and not to Allen, the vendor, and assumed by the vendee, Fergusson, as part of the price, presented himself and claimed the vendor’s privilege.

The Court emphatically said: “'Pile vendor’s privilege exists for the payment of the amount of these notes. They formed a part of the. price that Fergusson, the vendee, was to pay for the property,.and, by his assumption, he became the debtor for the whole amount of the notes.”

In Dupuy vs. Dashiell, 17 L. 65, the vendee had retained, in his hands, out of instillments to be paid as part of the price of sale, an amount with which to pay the debt due his vendor’s vendor. On suit by that vendor, against that purchaser, for the payment of the debt, to meet which the amount had been retained, the Court said: Under the stipulation pour mitmi, Dupuy (the first vendor who was the plaintiff,) has, as to the sums due him, all the lights and privileges which Lesassier himself, (the purchaser who had sold) could exercise on the property,” i. e., the vendor’s privilege. ■

The Court ruled as it did, not only because Dupuy was a creditor for the price of sale to Lesassier, but also because, as such creditor, by suing Dashiell, who had assumed to pay him, he had accepted the stipulation in his favor. The quality or cause of his original claim was not considered as a tost of his right. The foundation of the decision was his pre-existing debt acknowledged to be due. him, the assumption of that debt and the acceptance of the stipulation in his favor, whereby the purchaser made himself liable..

We find no fundamental characteristic distinctive features of antagonism between the two cases, which, far from clashing, harmoniously expound the same doctrine.

In the case of Conte vs. Cain, 33 A. 966, the same question was con-, sidered. We there said: What is it to the plaintiff, who was the purchaser, that part of the purchase price was a debt due to McConnell, (the mortgage creditor) or an original indebtedness to Randall, the vendor, arising directly and merely from the sale of the property to Palacio 9 * * *

“ It was lawful for Randall to make the stipulations in favor of McConnell, as the holder of the $3,000 claim, as a condition of the sale. The moment they were accepted by McConnell, they constituted a binding and irrevokable contract as to him, the terms of which enured to the benefit both of Randall and himself. * * *

“ The privilege springs into existence from the mere fact of a sale on credit, and continues in force as long as the price remains due, contingent on proper registry to bind third parties. It extends not only to such portions of the price as may be due to the vendor, but also to all other portions which may be represented by others, and which form a consideration of the sale. They are all protected by law, with this distinction, however, that where part of the price is a debt of the vendor, the creditor holding that debt would outrank the vendor; as, for instance, where there are successive sales, on which the price is due, wholly or in part, the first vendor is preferred to the second, the second to the third, and so throughout.” R. C. C. § 3251, (3218); V. 8 M. 60; 4 L. 238; 14L. 44; 6 A. 26, 19 L. 154; 5 R. 240 ; 6R. 410; 12 R. 152; 2 A. 643; 19 A. 125 ; 32 A. 822, 828.

The doctrine presently announced may well hereafter be considered as a rule of property, which, in our mind, it has always been.

We do not think that it is material, for the determination of this case, to decide whether the plaintiff, instead of demanding specific performance, could have asserted the resolutary condition, and sought to enforce rights protected by it: whether he could or not, does not deprive him of the right of claiming the privilege of vendor, which was denied him by the court a quo. 12 A. 695 ; 24 A. 498.

We have given due attention and weight to the theory advanced and to the authorities invoked by the learned counsel for the defense, but, while we admit their respectability, we cannot recognize that they can receive any application or produce any effect in a case like the present one.

We think the District Judge erred in refusing to allow the privilege claimed.

It is therefore ordered and decreed, that the judgment appealed from be amended by inserting in the latter part thereof, a recognition of the vendor’s privilege claimed in the petition, and that thus amended, said judgment be affirmed with costs.

Rehearing refused.

       In 32 A. 828, word “roman ’’ is an error — should "be “ modern, civil ”