text:
    No. 12,559.
    State of Louisiana vs. New Orleans City & Lake Railroad Company, Through Albert Baldwin, President.
    It may well be, that one person or a number of persons can, as relates to his or to their property, be brought within the scope of the police power of the municipality and made to comply with regulations looking to the health and comfort of the public, but no person, no class of persons, no interest can. be' singled out and forced to contribute labor or money in the interest of the public on property not owned by him or by them, which is in the exclusive use of the public.
    It would be an unwarrantable invasion of private rights. In adopting ordinances* to promote health and comfort the “ situation” or “locality” of the nuisance must be considered.
    The law limits and defines the power it bestows and the duty it imposes.
    Here the duty sought to be imposed was to “ sprinkle” streets, without stating- or defining where, when and in what manner the sprinkling was to be done.
    There should be a measure of duty stated so that those upon whom it is imposed will not be left to conjecture how much or how little they should do.
    Due consideration should be given to “locality” as well as to “reasonableness”' and “certainty” in drafting an ordinance with the view of promoting public health and comfort.
    A PPEAL from the Sixth Recorder’s Court for the City of New Orleans Arnauld, J.

      B. B. Howard for the Board of Health for the State of Louisiana, and James J. McLoughlin, Assistant City Attorney, and Samuel L. Oil-more, City Attorney, for the City of New Orleans, Plaintiffs, Appel-lees.

      Denegre, Blair & Denigre for Defendant, Appellant.
    Argued and submitted June 24, 1897.
    Opinion handed down June 26, 1897.
    Rehearing refused (reasons assigned) December 13, 1897.
   The opinion of the court was delivered by

Breaux, J.

This appeal was taken from a judgment rendered by the Sixth Recorder’s Court, imposing a fine of twenty-five dollars, or thirty days’ imprisonment, upon the president of the New Orleans City & Lake Railroad Company, under an ordinance adopted to compel persons operating street cars to sprinkle the streets through which their cars run. Under the terms of the ordinance it was made unlawful for any person, firm or corporation to operate any electric, trolley, or other cars or trains on the streets of this city without first providing in some reasonable manner for the sprinkling of the streets through which their cars run.”

The ordinance further provided, that any person, firm or corporation violating this ordinance shall be deemed guilty of a misdemeanor, and shall be subject to a fine of twenty-five dollars, ■or thirty days in the parish jail, or both, at the discretion of the recorder.”

The facts as developed by the testimony, offered by the plaintiff, are, that by reason of the velocity of the car, and its weight and its rapidly revolving wheels, volumes of dust are raised and wafted by the winds to the streets adjacent to the tracks; that the clouds of dust are counter to the health and comfort of the inhabitants. Several physicians of prominence testified that dust is injurious.

Regarding comfort,'there was no necessity of proving how annoying and uncomfortable are clouds of dust.

The defendant, as relates to the facts, showed that under its grant it was bound during the continuance of its franchise to keep in good order and repair all streets through which their lines run; between the rails and for one foot on each side of the rails; that sprinkling the streets through which its cars run would compel it to expend large amounts to defray the costs.

The defendant in the plea filed in the Recorder’s Court assailed the ordinance upon a number of grounds.

The first was that the ordinance was unreasonable.

No one disputes the proposition that an unreasonable ordinance should not be enforced.

The word “unreasonable” is here used in the- sense that an ordinance is inconsistent with the law of the land and the right to property.

From that point of view the courts have universally entertained jurisdiction to determine whether the ordinance was bindiug.

“It is,” said the court in Yick-Wo vs. Hopkins, Sheriff, 118 U. S., p. 371, “ an ancient jurisdiction of judicial tribunals to pronounce upon the reasonableness and consequent validity of ordinances. Ordinances must be reasonable,” citing Dillon on Municipal Corporations, 3d Ed., par. 319.

It remains for us to pass upon the question of unreasonabless vel non of the ordinance.

There is indefiniteness in the ordinance; it does not set forth with the least particularity what shall be done, or the extent of the service required in order to escape the penalty it ordained should be inflicted for not sprinkling the streets. The failure or performance may vary each day and in each locality where sprinkling may be required. No attempt was made to indicate how the work shall be done; the days the streets should be sprinkled; the capacity for sprinkling the sprinklers should have, and the number of sprinklings that should be applied each day, or at such time as may have been intended.

Without a matured plan covered by the terms of an ordinance, in regard to sprinkling the streets, nothing good or useful can be accomplished. It will give rise only to confusion and failure. Authority must issue its orders with such clearness and definiteness that it may be understood, and the work required should be specified so that performance can be required in every locality and from every one under some defined rule.

There should be some similarity in the work in each district. There can not be under the ordinance in hand. There should be a measure of duty imposed and those upon whom it is imposed should not be left to conjecture how much or how little they should do.

For the purpose of illustrating: No one ordinarily careful would enter into a formal written agreement with a contractor to sprinkle fifty-four (54) miles of street (the total lengths of defendant’s line) without specification of some kind as relates to the work required. The act to be done would not be indicated by the single word “sprinkle” in the contract. The contractor would never know when he i's exonerated from the obligation of his contract by performance. An ordinance imposing a duty “ to do ” should, contain some of the elements of certainty usual in private contracts.

This brings us to the objection that the ordinance is not equal and uniform in its operations, and imposes an unjust and oppressive burden upon a particular class of persons or corporations.

In so far as relates to the work of “ sprinkling ” the streets from ■curb to curb, less that portion over which defendant has a franchise, in our judgment the requirement of the ordinance is not equal and .uniform.

Those streets are used by the public. The work necessary to maintain their cleanliness or to ensure freedom from excessive dust is a burden which the municipality can not impose upon particular persons and corporations; only because they own a franchise over .an adjacent way.

It can not be imposed by municipal ordinance in the manner here •attempted. The defendant can not be compelled to clean and •sprinkle streets not covered by its contract and over which it has no franchise. The dust raised by defendant’s cars, it may be, is carried by the winds to the streets near. The evidence does not disclose that such is a fact. Presumbly, however, it is, but defendant’s cars are not the only vehicles which raise the dust and it would scarcely be desirable equality to make it sprinkle all the dust.

The question may be propounded: Oan they not be made to sprinkle their own tracks and relieve their own road, as well as the adjacent streets, of the dust raised by their cars?

To this the answer immediately suggests itself: The ordinance being indefinite and uncertain, it would- serve no purpose to decide in this case the issue raised by the question.

■ Having determined that the ordinance in its entirety is unreason.able, we would not be justified in holding that it is reasonable and ■valid in so far as it affects defendant’s track.

In view of the “unreasonableness” of the present ordinance, ■both the streets and the tracks are unaffected thereby.

This conclusion relieves us from the necessity of passing upon the other points urged, as it finally disposes of plaintiff’s case. We do not think that we should subject ourselves to the examination of •every point and pass upon them, in view of the fact that it would .not add to or in any respect change the conclusion we have reached.

Whatever there may be in other points must be left to future consideration and decision, if ever they are again presented.

It is therefore ordered and adjudged that the judgment appealed -from is reversed, annulled and avoided; the ordinance is declared ■void, and the prosecution by the plaintiff against the defendant is •dismissed.

ON Application fob a Rehuí akin a.

One of the grounds of the application for a rehearing was the asserted possible interpretation wbich may be given to our reference to the work of sprinkling the streets from curb to curb, and our reference to the contract under which the defendants hold their :grant.

Of course the contract, which is to become operative only in the distant future (the year 1906), never received a moment’s consideration in preparing the opinion and entering the decree.

All reference to a contract was the one under which the defendants’ road is being operated.

In order, however, to prevent any misinterpretation and to put ' the question entirely at rest, we expressly limit all discussion pre - ceding our decree to the question of indefiniteness of the ordinance .and the consequent unreasonableness.

This entirely eliminates all questions of contracts and of extant duties due under the contract.

Having thus modified the discussion leading to the decree the re-hearingjis refused.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 12,613.
    State of Louisiana vs. Gus. Anderson et al.
    When the panel o£ jurors drawn for the term is set aside for irregularities in the drawing, the court has the power in term time to direct another venire for immediate service, and, necessarily, the requisite of thirty days’ publication required before the beginning of the term of the names of the jurors composing the first or regular panel, has no application to the second venire drawn during the term because the first is set aside. Jury Aet No. 89 of 1896, Secs. 5, 6 and 1; 41 An. 600.
    APPEAL from the Third Judicial District Court for the Parish of Claiborne. Barksdale, J.

      M. J. Cunningham, Attorney General, and Charles B. Roberts, District Attorney (IS. H. McClendon and P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      J. E. Moore and J. W. Holbert for Defendants, Appellees.
    Submitted on briefs November 20, 1897.
    Opinion handed down November 29, 1897.
   The opinion of the court was delivered by

Miller, J.

This appeal is by the accused from the sentence for murder without capital punishment.

The jury drawn for the term at which the accused were convicted was set aside by the lower court on the ground that no notice of the drawing of the jury had been given the jury commissioners, and because all of them were not present at the drawing; the lower court-reconsidering and reversing its previous ruling sustaining the venire. Subsequently, on the third day of the term, the court ordered another drawing, and from this second drawing the grand jury was empaneled that indicted the accused and the petit jury selected that convicted. On behalf of the accused the motion to quash the indictment and the venire was made on the ground there was no authority for the second drawing of jurors after the term had begun and the regular venire had been set aside. The motion was overruled, and the question on this appeal is whether the motions should have been, sustained.

The jury (Act No. 99 of 1896) provides that thirty days prior to the beginning of every jury term the jury commissioners shall draw from the general venire box the jurors required for the first week of the term, with the power to draw additional jurors if deemed requisite for the succeeding weeks of the term; the ballots for each separate week are to be placed in envelopes endorsed with the week for which they are drawn, the whole to be placed by the clerk and. the commissioners in the jury box, sealed and locked, delivered to the clerk to be kept by him for use at the next term of court, a record is directed to be made by him of the drawing, specifying the weeks for which the jurors are drawn, and the statutes require pub-' lication of the lists of the drawn jurors to be published in the official journal of the parish or by posting on the court house door. Another section of the act provides that whenever the District Judge thinks proper he shall require the jury commissioners to select additional, jurors for. service either as regular jurors or as talesmen pursuant to, the formalities prescribed by the above quoted section. Act No. 99 of 1896, Secs. 5,,7.

The construction placed on this jury act by the lower court, óf con-' ferring the power to order the second venire, is supported by the public policy of avoiding the postponement of all criminal cases' to another term, whenever the regular venire is set aside. It may-well be presumed that the Legislature was guided by this consideration of the public interest when, after providing fo rthe drawing of thei regular or first venire, it gave the.court power to require the jury commissioners to select 'additional jurors'to be summoned without delay,, or within the delay fixed by the court. If the right exists to summon additional jurors for immediate service whenever the urgency ini the judgment of the court arises, it would seem to be a rigid construction of a remedial statute to deny any operation of the powen when the court finds it necessary to set aside the entire venire drawn' for the term. It is contended for the accused that the interpretation adverse to the legality of the second venire has been sanctioned by previous decisions, construing the analogous jury Act No. 44 of 1877. In the State vs. Vance, 31 An., p. 399, the first venire was set aside,.another drawn' after the beginning of the term, and to the indictment by the gr.and jury formed from the second drawing the ac-eused excepted to the pleading on the ground the term had lapsed. The court held there was no lapse. The accused then moved to quash the venire for irregularities in the drawing, but not on any objection to the right of the- court to order the.second venire. The court held first that the motion was in time, and then maintained the motion, because the clerk had not taken the oath before participating in selecting the names in the general venire box. The question in this case did not arise. In State vs. Revells, 31 An., p. 387, after the court had set aside the first venire on the objection made to the drawing, the accused in another case was ruled to trial on an indictment found by the grand jury drawn from the venire that had been set aside, and the petit jury was drawn from the same source. This court held the conviction void, and a similar decision was made in the State vs. Smith, 31 An., p. 406. In neither case was there any determination of the question now presented.

“ Additional,” used to designate the second drawing of jurors the court is empowered to direct, we do not think is to be understood as ■excluding the drawing made necessary by the setting aside the regular venire. The purpose of the legislator we must recognize in construing the jury act was to provide for jurors whenever necessary to dispatch the business of the term. That purpose is defeated by the technical construction that denies the right to call other jurors when the entire venire drawn for the term is set aside. This rigid interpretation of the prefix additional must yield in our opinion to that more liberal interpretation that fulfils the legislative Intention.

It is claimed that the second venire was illegal because not preceded by the publication of the jury list for thirty days before the term. As the second venire is to be drawn in term time and for immediate service, the requirement of thirty days’ publication for the regular drawing can not be required for the second venire. When the section requires the additional jurors to be drawn in conformity with the requisites for the regular drawing, reference is intended to the other formalities to secure the integrity of the drawing specified in the fifth, section of the act, but not to exact the impossibility of a thirty-day publication.

Our view of the construction of this act is sustained in State vs. Wright, 41 An. 600, construing the similar provision in the jury Act No. 44 of 1877. The objection considered in that ease was that the court had no power to summon additional jurors after the term had commenced and after the arraignment of the accused. The act of 1877 required the drawing of the regular venire fifty days, and the jury act of 1896, substitutes thirty days before the opening of the term for the drawing of the jury. In that case there had been no setting aside of the regular venire. Still the court gave weight to the obvious policy of the statute in conferring power to call additional jurors for the business of the court not foreseen before the term when the regular venire was drawn. We do not feel at liberty so to narrow the act of 1896 as to leave no power to provide jurors during the term for the unforeseen contingency of the displacement of the regular venire.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be affirmed.


author: Breaux, J.

text:
    No. 12,466.
    Frank Regan and Henry B. Balcom vs. The Adams Express Company and the Southern Express Company.

      Jin Express Company's Liability. — The responsibility o£ an express company was considered, in the matter at issue, as similar to iliat o£ tlie common carrier Elliott on Railroads, par. 1407.

      Not Bound to Unload under Statute. — Horses shipped on a special express car in which were food, water and space to rest, need not be unloaded every twenty-eight hours as they are within the exception of the statute. United States Revised Statutes, Sec. 4S8S.

      Offer to Side Track the Car. — The offer to side-traclc a car loaded with horses (fourteen in number, two were frightened and unruly) was not unreasonable. The car, the evidence shows, was to be taken up by another passenger train within the following twelve hours. The evidence is: had the car been side-tracked that an unloading of the horses might have been made at the chute for unloading- from freight ears.

      Owner Accompanying the Horses —The owner who accompanies his stock has the burden of proving that his demand in regard to the slock was reasonable and clearly made.

      Time Table or Schedule. — It was impossible, without disturbing the time schedule of the entire train, “to cut out “the express car, unload the unmanageable horses at the chute, and bring back tho car, re-attach it to the passenger train: It was not possible to unload the two horses and continue on the same train with the car and the remaining horses in the oar.

      Verdict. — It the verdict was right and the charge was erroneous, the verdict and-judgment thereon must he held correct and affirmed.

      APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      George L. Bright for Plaintiffs, Appellants.

      Edwin Dubuisson & Chisholm, Leovy & Leovy, Denégre, Blair & Denügre for Defendants, Appellees.
    Argued and submitted May 1, 1897.
    Opinion handed down May 31, 1897.
    Rehearing refused December 13, 1897.
   The opinion of the court was delivered by

Breaux, J.

This was an action against the defendant for not carrying safely and delivering two out of a shipment of fourteen horses of great value shipped from New Jersey, in a special car to New Orleans. One of the horses died the day after the arrival of the train, and the other, it is alleged, was greatly injured, owing, it is charged, to the negligence of the carrier.

They were running horses, worth, it was asserted, a large sum.

The defendants deny the negligence and injury charged.

They were'^shipped at Jersey City by Adams Express. At Chattanooga they were transferred to the Southern Express Company to complete the transportation. The car in which the horses were shipped formed part of a train of the Louisville & Nashville Railroad. It was shown in evidence that in the Northern States of this country there are express trains. There are no such trains in the South; the express car always is attached to form part of a railroad train. The price of transportation paid to the express was five hundred dollars. In the special contract signed by the shipper there were a number of clauses intended by the express company to limit its liability, such as that the liability of the company was. to be that of a forwarder and not of a common carrier, and other clauses to the same effect. The contract also contained a clause with the view of binding the shipper, “ at his own risk and expense, to take care of and water the animals while being transported, whether-delayed in transit or not,” and another clause specially referring .t o ‘ detention ” during transportation. There were twelve attendants, in the service of the plaintiff, whose duty it was to take care of these horses on the cars. They had needful food and water on board. At Jersey Oity, the place of departure, all was satisfactory when the car left. No trouble of any kind had occurred on the way until a short distance north of Decatur — the more valuable of the two horses, “ Sir Francis,” became fretful and frightened; later another of the other horses commenced to kick and plunge.

Between Decatur and Birmingham they were, the witnesses testified, made desperate and crazy by the motion and noise of the running car. They kicked out of their stalls, and it required all the efforts of the attendants to keep them quiet. Having fallen down, or rather having been thrown down by the jolting car, twice, one of the plaintiffs, who was' on the train, pulled the bell cord and stopped the train. The unmanageable horses and the consequent danger were the causes for pulling the bell cord.

At Birmingham Regan, one of the owners, stepped from the car to the platform, met the express agent at that place and said to him that he had two horses that he desired to unload, The answer of the agent was, according to Regan’s account, that he could not have,them unloaded unless they were made to jump out of the car, as there was no chute to unload horses at that place. The witness said his reply to this agent was that for them to jump out in their wounded condition was an impossibility.

The express agent, on the other hand, as a witness, contradicted this plaintiff and said that he told him that he saw no way to unload-them unless they were taken to the stock yard. To do this it would have been necessary to “ cut out” this car on which the horses were from the train and to take it to the stock yard, at some distance from the station, and there unload, as there was a chute at that place. It was a matter of impossibility to unload the horses and go on with the same train. The next passenger train was due in twelve hours, and that would have been the delay, if the offer he says he made had been accepted. The conversation about unloading the horses was held, the express agent testified, in presence of other witnesses,' also servants of one of the defendant companies. They corroborated the testimony of the express agent.

While the train was at Birmingham the assistant superintendent of -the railroad at that place inquired about pulling the bell-cord and stopping the train. In reply to the inquiry the plaintiff said that he felt compelled to stop the train for the reason that the horses were no longer manageable and his attendants were in consequence in danger.

There were remonstrances made by the officer to the owner of the horses about the bell-cord pulling, which has no bearing upon the issues of the case.

He testifies that he said to this owner that in preference to delaying the train he would have the car put on the side track, to be picked up the next morning by the next passenger train. The fol-v lowing is from his testimony: “ Then I remained outside on the tender of the car and remarked to him, ‘ Well, if you think that you can get through to Montgomery wichout any trouble, all right; but if not, T will put you out at Birmingham, to be taken up by the next train.’ Then he said he thought the horse would go through all' right to Montgomery, and it was his intention to. take the horse out at Montgomery.”

The evidence does not show that anything was said about unloading horses at Montgomery after the arrival of the train at that place.

The owner, Regan, as a witness contradicted this superintended and said that such was not what he had said. The testimony of the other witnesses for plaintiffs, their attendants, on the cars as to what took place at Birmingham is not entirely clear and satisfactory upon this point. They evidently had heard that it was the owner’s desire to unload the two horses; whether the talk about the unloading was had with the superintendent or the express agent, or whether they had heard all that was said was not clearly shown.

The owner and the attendants traced, as they thought, the cause of death of one of the horses and the injury to the other to the fact chat they were not unloaded at Birmingham. The remedy was, they said, when highly bred horses, such as these were, became car frightened to unload them.

Dr. Heitzman, a veterinary surgeon called upon by plaintiffs, examined Sir Eraneis two or three hours after the arrival of plantiffs’ horses. He testified that he had intense fever and hemorrhages from the nostrils and was in a dying condition. Questioned as to the cause of the illness, he said that such illness could be occasioned by sudden changes of temperature, by exposure, ill treatment and a variety of other causes, and that he did not know what was the cause of the fever in this case, but that he died of catarrhal fever which he had had more than forty-eight hours prior to the time of the examination — a time preceding the car-freight craze near Birmingham. He suggested to the owner to have a post-mortem examination made to see if there were any 'internal bruises; none was made; the owner said to him that the dead animal had been taken off.

The verdict of the jury was for the defendant. From the verdict ' and the judgment of the court the plaintiff appeals.

THE RESPONSIBILITY WAS THAT OE THE CARRIER.

Preliminarily, we will state that carriers can not escape the duty they owe as common carriers by assuming the title of forwarders,” as was attempted by inserting that word in the bill of lading to which we have before referred.

The express company, in this case, being a common carrier we have treated the issues as issues between the carrier and the shipper. In the oral argument and in the reference to authorities in plaintiffs’ brief the correct principle of law was brought to our attention: that railroad companies are guilty of negligence per se for not unloading animals for rest, water and food, as required by the law.

We have no desire to limit the effect of the law or to be at all close in its interpretation, for all recognize that it was adopted for the purpose of humanizing the treatment of dumb animals and to minimize their suffering while being transported.

But it remains that while under the statute the^e is a general command to unload them every twenty-eight consecutive hours, it contains an exception that the statute shall not apply when animals are carried in cars in which they have food, water and space to rest.. U. S. R. S., Sec. 4388.

The evidence shows that the special car of the Adams Express Company in which these horses were lodged in transitu supplied these requirements.

OFFER TO SIDE-TRACK THE CAR.

A supply of food and water, however, will not operate as immunity to the common carrier, in failing to unload animals which should be unloaded for illness or other sufficient cause. The principal and important question for our determination is whether there was negli-genee on the part of the defendants in not having offered facilities to the plaintiffs to enable them to take out their horses when the car arrived at Birmingham,- and as a corollary to the foregoing the question arises, whether the defendants did all they could to comply with their obligation as common carriers.

It is abundantly established by uncontradicted testimony that there were no chutes at that station to unload live stock from the passenger train. ■ It was, therefore, impossible to lead out the two horses from the car while the train was at the passenger depot. To remove at all while at.Birmingham it would have been necessary to “ cut the car out” and pull it to the stock yard, unload there and bring the car with the remaining horses on board to the passenger train. The consequent delay would have disarranged the time schedule, and was not to be thought of. The evidence leaves only one inference, which was, that the plaintiffs, without regard to impossible conditions, expected the unloading of the two unmanageable horses and to continue on their way with the remaining horses to the point of destination.

• This was not possible, and the impossibility did not give good ground for damages, provided the defendants were not in other respects negligent.

The weight of the evidence • shows that there was willingness shown to take the plaintiffs’ car up to the stock yard and have it unloaded there. This would have necessitated a delay of twelve hours, which plaintiffs (with their remaining twelve horses) were, we believe, anxious to avoid. If the unloading, as contended for by the plaintiffs was necessary, the delay was unavoidable and should, under the circumstances, we think, have been incurred. Even an express car may be subjected to a delay without giving cause for damages. It was a misfortune to which plaintiffs were not strangers. They knew, or must be held to have known, that facilities for unloading live stock were not offered at all the stations on the route of the railroad on which they were carried.

At Montgomery, the next station, mentioned as being on the route, where there were chutes for landing live stock from an express car, nothing was said about unloading the two horses. The train stopped át this station one hour and twenty minutes. There was, it appears, ample time to safely unload the horses. Leaving this point, we Will state that, after considering the evidence, showing its impracticability, we do not think that it was neglect on the part of the defendant company not to have provided chutes to unload live stock at a passenger depot, however much it is desirable to offer facili-ies for unloading whenever it becomes necessary.

In the elaborate brief of counsel it was stated that the owner could properly decline to be left at a stock yard until the next day, to be taken up by some uncertain train, freight or passenger, endanger the lives of all his horses, because the express company had neglected to provide the necessary chute to unload two horses.

We have found no evidence of record that there was uncertainty about the arrival of the next passenger train, nor was it shown that unloading at the chute would have endangered the lives of the horses. There was no necessity to lead them into the cattle pen, after taking them through the chute at the cattle yard. “ lb has been held that where stock are suffering, or become frightened or unruly, it is the duty of the company, when properly requested, to side-track the car, when it can reasonably do so.” Elliott on Railroads, Sec. 1548.

One of the owners accompanied the horses in the transportation, and his attendants under the contract of shipment were given passage to attend the stock. There was a divided responsibility between owner and carrier. It was incumbent upon the owner to submit to some delay, particularly as his contract for transportation contained a limited liability clause regarding delay, which has been decreed binding in several well-considered decisions, “ a contract to the extent that there may be delay on the way is lawful. Squire vs. New York Central, 98 Massachusetts, pp. 239, 249. “The carrier is responsible for unreasonable delay.” Elliott on Railroads, Sec. 1482. We do not think that the offer to side-track the car, involving as it did a delay of twelve hours, was an unreasonable delay in view of the facts of the case.

RELATIVE TO THE CAUSE OE INJURY AND DEATH.

By this conclusion we were brought to the consideration of the second question at issue: the cause of injury to one of the horses and the death of the other.

With reference to the injury of the horse for which damage is claimed; while the witnesses called by the plaintiffs who testified upon the subject, and the plaintiffs themselves are doubtless sincere in believing that there was injury inflicted upon him as alleged, it remains as a fact that his speed after was greater than it had been prior to the alleged injury.

There was no testimony of any particular injury to this horse. The date of the alleged injury was late in October, in December following he was the second horse in a race in which there were seven horses. It appears that in other races prior to October his running was not among the first. Moreover, one of the veterinary surgeons who testified, said that he was called upon to examine this horse Robbie W. in December and that after the examination he made a certificate showing that he was in perfect condition.

With reference to the dead horse “ Sir Francis ” the proof does not sustain the conclusion that the injuries charged to have been suffered were the cause of his death. There is no evidence before us of internal or any other injury. The wounds are not described or referred to. The witnesses for the plaintiffs said in a broad way that he was greatly injured and died from the effect of the injuries. On the other hand, the testimony of the veterinary surgeon by whom the animal was examined raises at least grave doubts as to the correctness of the opinion of witnesses who were not experts.

THE CHARGE OP THE COURT AND THE VERDICT.

Passing to the last point in the case; counsel for plaintiffs excepted to the entire charge of the court to the jury.

We grant that the charge was erroneous. The whole testimony was admitted; the whole case is before us.

In England we are informed by the books that it is no ground for a new trial that the judge misdirected the jury, unless it is shown that the jury was thereby induced to form a wrong conclusion.

Here the verdict was right; another charge than that given would not, in our opinion, have given here reasons for a different return by the jury.

In the following cited cases the rule of law was sustained: the verdict of a jury properly grounded upon sufficient evidence will be affirmed on appeal. Howell vs. St. Charles Street R. R. Co., 22 An. 603; Moller vs. Gauche, 16 An. 44; Ayland vs. Rice, 23 An. 75.

In Brothers vs. Blair & Co., 21 An. 330, the court said: It would be fruitless to discuss the ingenious objection of the defendants to the charge of the court when the case is plainly with the plaintiffs in the evidence and the verdict is fully justified thereby, citing Maurin vs. Toustin, 6 Martin, 498.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed at appellant’s costs.


text:
    No. 12,534.
    Judah Hart vs. Robert J. Connolly, Individually and as Executor of Catherine Connolly.
    THe authorization of the wife to give the injunction bond is implied when the husband joins her in the suit for the injunction. 2 An. 140;,11 An. 265; 2d H. and D., p. 1127, No. 12.
    In her absence the affidavit may be made by her attorney and the affidavit need not show the husband’s absence. C. P., Art. 216.
    The petition substantially averring her ownership of property seized under execution, met by an exception of no cnuse of action will be deemed sufficient.
    The original petition being sufficient to maintain the injunction, it is no objection, that a supplemental petition setting forth her ownership with greater particularity is not sworn to.
    Creditors are not entitled to notice of the application of the heir for recognition and to be put in possession of the succession property, the creditor’s right is security from the heirs. C. P., Arts. 1000 et seq., Revised Statutes, 3676; C. C. 1671.
    without an executory title against the heir, the creditor can not seize the property in the hands of the heir, he acquires from the deceased. C. P., Arts. 641 seq.; 1 An. 264.
    APPEAL from the Civil District Oourt for the Parish of Orleans. Monroe, J.

      Theodore Gotonio (Rogers & Dodds of Counsel) for Judah Hart, Plaintiff, Defendant in Injunction, Appellant.

      Dinlcelspiel & Hart for Civil Sheriff, Appellee.

      Hughes & Favrot for Mrs. Lawson, Plaintiff in Injunction, Appellee.
    Argued and submitted June 17, 1897.
    Opinion handed down June 19, 1897.
    Rehearing refused December 13, 1897.
   The opinion of the court was delivered by

Miller, J.

This appeal is by the plaintiff from the judgment perpetuating the injunction obtained by one of the defendants, Mary E. Connolly, to prevent the sale of her property under plaintiff’s judgment and execution against Robert J. Connolly, individually, and as executor of his deceased wife, Catherine Connolly.

Catherine Connolly, by will, as well as we can understand the record, left her property to her husband, Robert J. Connolly, and two children of the marriage, Mary B., the defendant, and a sister. Robert J., the father, acquired the sister’s interese, and, with Mary E., were recognized as entitled to the succession property and put in possession. Thereafter, MaryE. acquired the interest of her father, thus becoming owner of the property embracing that involved in this suit. At the time tbe father and his daughter were recognized as entitled to the property and put in possession there was pending the plaintiff’s suit against R. J. Connolly, individually and as executor of his deceased wife, for a debt due by her, and about a year after the order putting Mary E. and her father in possession, the plaintiff obtained judgment and caused to be seizbd the property acquired by Mary E, Connolly as the heir of her mother and under the purchase from R. J. Connolly. The execution was enjoined by Mary E. and her husband, alleging ownership. The injunction was met by a rule to dissolve, urging a number of grounds, and then an exception of no cause of action, which was overruled; then the plaintiff in injunction, Mary E. Connolly, filed a supplemental petition more particularly setting forth her title; to this supplemental petition the exceptions were renewed and also overruled. The'defence to the injunction suit on the merits is substantially that the plaintiff, Hart, is the judgment creditor of the succession of Catherine Connolly; that Mary E., as her heir, is bound for the succession debts; that the order putting her father, Robert J., and herself in possession of the succession property was ex parte and void, and that plaintiff, Hart, is entitled to seize it under his execution against the executor of Catherine Connolly. The judgment maintained the injunction, and this appeal by Hart, the original plaintiff, followed.

The injunction suit was by Mary E. Connolly and her husband, J. J. LawsoD, and the petition averred ownership of Mary E. by inheritance from her mother and purchase from her father. The affidavit was made by the attorney averring the absence of bis client,-.Mary E., the bond was signed by him for her and the required security given. It is clear that the authorization for the wife to furnish the is implied by his joining her in the suit for the injunction, and the bond injunction bond did not require her signature. Dunn vs. Woodward, 11 An. 265. The law authorizes the attorney to make the affidavit in the absence of his client, and it was unnecessary for the affidavit to state the absence of husband and wife. C. P., Art. 210. In our opinion, the rule to dissolve on the grounds urged here, that the husband did not authorize his wife to sign the bond; that it is not signed by her, and is defective because the absence of the husband is not stated, was properly denied. The original petition substantially averred ownership by the plaintiff in injunction. It was not met by any exception calling for greater particularity of statement. The plaintiff, in our opinion, might have stood upon it. The supplemental petition made no material addition to the original petition. The supplemental petition merely stated the propositions of ownership inherited by the father and Mary E.; the interest he acquired by his purchase; and averred that after the acquisition by Mary E. she had conveyed to a building association, which had reconveyéd to her. If the original petition was sufficient, as we think it was, there is no-force in the objection the supplemental petition was not accompanied by another affidavit and bond. In the plaintiff’s brief it is conceded the transfer to the building association, and its -retransfer to the plaintiff in injunction, left ownership in Mary E., and hence there was no substantial change of the issue of ownership tendered by the original petition. We think the exceptions to the supplemental petition were properly overruled, and the fact it was not accompanied by an affidavit and bond was no ground to set-aside the injunction.

The defence on the merits that the order putting the heirs in possession was not binding on creditors can not be sustained. The heir can at any time take the seizin from the executors and go into possession by tendering the amount of the movable legacies. C. C., Art. 1671. No notice is required to creditors, but they may, if they choose, exact security. R. S. 3678. The plaintiff stood by, made no application for security, and more than a year after attempted to seize under the judgment and execution against the executor functus -, officio and a closed succession. Executions to compel payment of sue cession debts are not permitted. C. P., Arts. 983, 987, et seq. Still less on such executions can the property be seized in the hands of the heir. Unless the creditor has an executory title the law remits the creditor to suit, judgment and execution against the heir. C. P., Art. 64, et seq.; Boguille vs. Faille, 1 An. 204. The judgment of the lower court properly maintained the injunction, leaving the plaintiff to his appropriate remedies to enforce the liability of the heir, bond after going into possession as before, for the debts of her deceased mother.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.


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    No. 12,496.
    The Pan Handle National Bank vs. Mrs. C. G. Alexander and Hartford A. Jenkins.
    The caga involves mainly an issue o£ fact — defendants’ title to the promissory note secured by mortgage the subject of the controversy.
    The court applies the legal presumption that the holders of the negotiable promissory note suing upon it, acquired before maturity and'for value, and finds besides the presumption supported by the testimony.
    APPEAL from the Ninth Judicial District Court for the Parish of De Soto. Hall, J.

      Elam & Egan for Plaintiff, Appellant.

      Lee & Liverman and Oeo. E. Head for Mrs. Alexander, Defendant, Appellee.
    Argued and submitted May 11, 1897.
    Opinion handed down May 31, 1897.
    Rehearing refused December 13, 1897.
   The opinion of the court was delivered by

Miller, J.

The plaintiff, a judgment creditor, seeks to have set aside as fraudulent the mortgage made by his debtor to secure the promissory note for twenty-five hundred dollars, payable one day after date, held by the defendant Mrs. Alexander, and from the judgment reducing the mortgage plaintiff appeals.

The debtor made the mortgage a short time before the plaintiff recovered its judgment. The mortgage was in favor of any future holder. The mortgage note passed into the hands of Mrs. Alexander, who is the aunt of the debtor, and he lived with her. She is shown to be a lady of means and of advanced age. Her testimony is she acquired the note for fourteen hundred and forty dollars.

The petition contains the allegations appropriate to a suit of this character; the insolvency of the debtor, that there was no consideration for the mortgage, that it was made to defeat plaintiff’s rights; operates to plaintiff’s injury; that Mrs. Alexander concurred in the debtor’s fraudulent purposes and acquired after maturity. The answer of the debtor and that of Mrs. Alexander maintains the validity of the mortgage and her title to the note.

It is claimed by plaintiff that the note was returned to the maker subsequent to its execution, and remained in his hands after its maturity. Hence it is contended the mortgage became void. We find no occasion to examine the legal proposition advanced by the plaintiff, in reference to the avoidance of the mortgage. The record does not furnish the basis of fact for the proposition. The testimony satisfies us the note was issued to Mrs. Alexander for the first and only time it was used by the maker, and was never returned to him. When produced by her in court the note bore the endorsement “bought 10th August, 1895,” and although Mrs. Alexander was unable to state from her own recollection the date of her acquisition of the note, the endorsement harmonizes with the usual course to negotiate notes before maturity, and we see no basis on which we can reject the endorsement and the presumption of negotiation before maturity. This view, too, precludes any necessity for discussing the contention of plaintiff that the issue of the mortgage note by the maker, after its maturity, will affect the mortgage, or, at least, require supporting proof from the holder, especially as in this case there is the testimony in the record on the subject.

To impeach the note and mortgage plaintiff urges that the purpose of the transaction was to shield the property of the mortgagor from his creditors. But if Mrs. Alexander in good faith bought the note, she can not; be affected by the purpose, whatever it was, of the mortgagor. It is pressed on us that she is the aunt of the mortgagor, and that he lives with her. But whatever the weight of this relationship, in investigations of this character due significance is due to the conceded fact that she is a lady of means and to her testimony that she acquired the note for value. She is eighty years of age and her testimony is commented upon as not sustaining her claim. Asked when she acquired the note, she stated she could not recollect; asked as to the price paid, she was prompted in her answer by some one present, presumably the mortgagor, and similar features of her testimony are brought to our notice. Still, further, it is urged, the price paid, fourteen hundred and forty dollars, was disproportioned to the amount of the note, twenty-five hundred dollars, and that she had no motive to acquire the land mortgaged, as she already owned land unoccupied and not cultivated. The circumstances relied on to discredit title must yield, we think, to the fact that she is in possession of her the note and her testimony that she bought it. The inability to recollect the date of the purchase, her difficulty in promptly answering as to the amount paid and other circumstances connected with the transactions are naturally referable to the defect of memory and mental infirmity incident to advanced age, and this inference is supported by the testimony of the physician cognizant of her condition and familiar with the effect of age on the mind. We can not infer fraud or falsehood from defects of this character in the testimony of an aged person. We are impressed too with the distinctness, as well as the repetition in her testimony, that she bought the note, and in her own language paid well for it.” On that main fact there is no hesitancy or lack of positiveness on her part. She is shown to be a lady of high character. Age impairs th9 mental faculties, but has no tendency to prompt falsehood or qualify for participation in a fraudulent scheme. Then, too, Mrs. Alexander on a previous occasion and in a different suit was examined on facts and articles and answered distinctly and positively she owned the note and paid for it. We think with the lower court that her testimony is to be accepted. On the issue of her title she stands fortified by the presumption the law attaches to the possession of the note and by her own testimony. She is content with the judgment that maintains her right to the extent of the money paid by her for the note, her counsel avowing in argument her entire willingness not to reap a profit to the prejudice of the plaintiff as creditor of the mortgagor.

It is therefore ordered, adjudged and decreed that the judgment, of the lower court be affirmed with costs.


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    No. 12,481.
    Armand Bossu, Dative Testamentary Executor, vs. New Orleans, Fort Jackson & Grand Isle R. R. Company.
    Conceding that the proof is clear to the effect, that an orange orchard was set on fire hy the sparks emitted from a passing locomotive, or by the Are having been communicated to it in a railroad company’s employees carelessly burning off its right of way,no damages can be awarded the owner who has abandoned it, and allowed it to run to waste and become so dilapidated and overgrown with weeds and grass that the extinguishment by Are would prove a benefit rather than an injury to him.
    APPEAL from the Twenty-second Judicial District Court for the Parish of Plaquemines. Hingle, J.

      Henry Chiapella for Plaintiff, Appellant.

      James Wilkinson and E. Howard MaOaleb for Defendant, Appellee».
    Argued and submitted June 18, 1897.
    Opinion handed down June 29, 1897.
    Rehearing refused December 13, 1897.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

The grounds of the motion are (!) that'this court has no jurisdiction ratione material over this cause; (2) that the amount of damages claimed by the plaintiff is fictitious, exaggerated and inflated, far more than he had reason to believe had been sustained, and only made for the purpose of giving this court appellate jurisdiction of the controversy.

This suit is for damages the deceased is alleged to have-sustained by the destruction of his orange orchard by ñre through the fault and negligence of the defendant, its servants and agents, which are placed at the sum of five thousand two hundred and one dollars; and on the trial there was judgment in favor of the defendant rejecting the plaintiff’s demands, and from which the latter prosecutes this appeal.

While it may be possible — aye, probable — that we may, upon a consideration of the evidence, come to the conclusion that the judgment should be affirmed, we do not regard it as a case which should be summarily dismissed without an examination.

The suit presents all the insignia of a serious demand and an appeal seriously prosecuted.

The motion is denied.

ON the Merits.

Plaintiff alleges that the succession was damaged by the negligent burning by the defendant of three hundred and forty-one bearing orange trees worth twelve dollars each — four thousand and ninety-two dollars, and three hundred and three younger trees worth three dollars each — nine hundred and nine dollars; that is to say, five thousand two hundred and one dollars. The trees are alleged to have been situated in the decedent’s orange grove, about sixty miles below New Orleans, and which was divided by the track 6f the defendant company — the burnt area covering that portion of the orchard which is situated in the rear of the track, constituting about half of the same.

It appears from the record that, shortly previous to the institution of this suit, two gentlemen who resided in the neighborhood of the burnt premises paid a visit thereto at the request of the executor, and made the following estimate of the damages which the deceased had sustained by the fire, viz.:

8(0 large orange trees, -worth 15o. apieoe.$5t no
SOU smaller ones, worth 25u. upieee. 76 00
Total.$126 00

The testimony explains that the orange orchard of the deceased Was completely devastated by a great storm or tidal wave which occurred in the Gulf of Mexico in October, 1893, and which disaster was succeeded by the intense and extreme cold of 1895, whereby the remaining vitality of the orange trees, old and young, was almost completely annihilated — the few surviving being of insignificant value and scarcely worth cultivation, and altogether unproductive.

The testimony shows that subsequent to the aforesaid disasters the deceased took little or no iuterest in his orange orchard, and did not attempt to prune or cultivate it; but, on the contrary, allowed it to grow up in grass and weeds.

Photographs taken of the locus in quo soon after the fire very clearly exhibit the neglected and abandoned condition of that portion of the orchard which was not destroyed by fire, aDd witnesses at the trial supplement the mute evidence furnished by the pictures to the effect that the portion of the orchard which was destroyed by fire was in a similar condition.

It is established by the testimony of witnesses that the fire proved rather a benefit than a disadvantage to the orchard, for the reason that same could not have been otherwise reduced to a cultivatable condition, and in that view the judge a quo seems to have coincided.

It is unnecessary to go into a further detail of the evidence, all of which is of the same character.

The plaintiff has not made out a case for damages.

Judgment affirmed.


author: Watkins, J.

text:
    No. 12,493.
    B. M. Harrod et als. vs. New Orleans Sewerage Company.
    For the reasons assigned in State ex rel. Brewing Company vs. Judge, 46 An. 100 the appeal is dismissed.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Howe, Spencer & Gocke for Plaintiffs, Appellees.

      Farrar, Jonas & Kruttschnitt for A. A. Woods, Receiver, Appellee.

      Rogers & Dodds for Defendant, Appellant.
    Argued and submitted November 30, 1897.
    Opinion handed down December 13, 1897.
   On Motion to Dismiss.

The opinion of the court was delivered by

Watkins, J.

This appeal is prosecuted by a third person who was not originally a party to the suit, but a stockholder of the corporation, and the decree that is appealed from is an interlocutory judgment appointing a receiver of a corporation.

The appellees move to dismiss the appeal on several grounds, viz.:

First — That the return day was fixed by the appellant and same was illegal, because fifteen days interval for citation and answer were not allowed in conformity to the requirements of Act No. 6 of 1896.

Second — That proper parties were not made to the appeal.

Third — That the petition of appeal does not show an appealable interest in the litigation.

Fourth — That the transcript of appeal is deficient and incomplete through the fault of appellant.

Fijth — That no appeal will lie from an order appointing a receiver in a case of this character.

And finally the motion charges that the appellant has acquiesced in the judgment since the rendition thereof.

We find it unnecessary to examine and pass upon any of the grounds stated except the fifth, as that one is necessarily fatal to the appeal.

The record shows that B. M. Harrodand several other persons, alleging themselves to be creditors of the New Orleans Sewerage Company for work done as engineers employed by said company in the planning and construction of its works of sewerage and drainage, and that, notwithstanding amicable demand had been repeatedly made, the sums due them had not been paid, applied to the judge a quo for an order appointing a receiver for said corporation — averring the insolvency of said corporation and its inability to pay its creditors.

This proceeding was based upon a resolution of the board of directors of the corporation which was adopted a few days previously, wherein the statement is made that the affairs of the company are in a very embarrassed condition, making the corporation practically insolvent — large sums of money being due to its creditors which it is unable to pay. And wherein the further statement is made that it is necessary for the protection of its creditors, the prevention of prefer-•enees, the realization of its assets and the proper application of its assets to the satisfaction of its creditors, that a receiver should be appointed.

On the presentation of the aforesaid petition, accompanied by the resolution of the board of directors, the judge a quo granted the order appointing a receiver.

It has been held by this court that such order is not subject to review on appeal as an interlocutory judgment that may inflict an irreparable injury, but that the remedy is to be sought by rule to set aside and vacate the order of appointment in the court a qua, and an appeal from an unsatisfactory judgment upon the trial of same.

In State ex rel. Brewing Company vs. Judge, 46 An. 100, this court said on this question that the court of the first instance having acted upon the resolution of the board of directors of the company consenting to the appointment of a receiver, a suspensive appeal will not lie from the decree of appointment without proof that the resolution was ultra vires, or that it was, in other respects, illegal and improper.

“That the remedy to correct the alleged illegality in the appointment of a receiver is by rule to set aside and vacate the order of appointment, and if the rule be denied to appeal from the decision.”

That opinion applies esactly to this case, and for the reasons assigned therein the appeal is dismissed.


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    No. 12,666.
    State of Louisiana vs. Ben. Lafargue.
    When there is no bill of exceptions, assignment of errors or error disclosed by the record the sentence of the accused will be affirmed.
    APPEAL from the Criminal District Court for the Parish of Orleans. Baker, J.

      M. J. Cunningham, Attorney General, for Plaintiff, Appellee.
    Defendant, Appellant, in propria persona.

    Submitted on briefs December 4, 1897.
    Opinion handed down December 13, 1897.
   The opinion of the court was delivered by

Miller, J.

The appeal is from a sentence for larceny.

There is no bill of exceptions nor assignment of errors, nor any error shown by the record. The accused is without counsel, and we have gone over the record with the desire that the accused may not be deprived on any legal right, but we find no basis on which we can interfere with the sentence.

It is therefore ordered, adjudged and decreed that the sentence be affirmed.


author: Blanchard, J.

text:
    No. 12,681.
    State of Louisiana vs. Paul Burton.
    Appeals in criminal causes are made returnable within ten days aiter the granting of the order of appeal. Act 30 of 1878.

    Where an appeal is not seasonably filed and no proper explanation is made, or appears from the record, showing the laches not imputable to appellant, the appeal will be dismissed.
    APPEAL from the Twentieth Judicial District Court for the Parish of Ascension. Guión, J.

      M. J. Cunningham, Attorney General, for Plaintiff, Appellee.

      E. N. Pugh-and R. MoCulloh, for Defendant, Appellant.
    Submitted on briefs December 4, 1897.
    Opinion handed down December 13, 1897.
   The opinion of the court was delivered by

Blanchard, J.

Defendant was tried for murder, convicted of manslaughter and sentenced to two years at hard labor.

On October 25, 1897, he took an order of appeal to this court, but the transcript was not filed here until November 24, 1897, thirty days later. Because of this a motion to dismiss the appeal is made.

ON Motion to Dismiss.

Appeals in criminal cases are made returnable within ten days after the granting of the order of appeal. Act No. 30 of 1878.

It thus appears that this appeal was not filed seasonably. No reason whatever is assigned for the delay.

While the court takes judicial cognizance of the existence of yellow fever in the late summer and fall of the current year in the city of New Orleans, and of the quarantine regulations established throughout the country in consequence thereof, and of the interruption therefrom, to a great extent, of communication, travel and the transmission of the mails, the same does not account for, nor justify, in the .absence of a showing to that effect, the long delay in the filing of this appeal, which comes from a parish but a short distance by rail and river from the court.

In State vs. Bevell, 47 An. 48, a motion to dismiss the appeal which had not been seasonably filed was, it is true, denied. But it was upon the ground that the facts appearing justified the refusal. The accused in that case had no counsel and was represented by attorneys assigned by the court, and it was found that it was the inadvertence of the clerk of the lower court that had caused the delay in preparing and bringing up the record.

No such facts appear in the instant case, and we are constrained to enforce the requirement of the law in respect to the filing of appeals. State vs. Clark, 49 An. 780.

The motion is sustained and the appeal dismissed.


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    No. 12,606.
    State of Louisiana vs. J. Monroe Underwood.
    Conviction for breaking and entering in the night-time with intent to rape.
    Jury are to weigh all the attending circumstances, and from these determine, as a question of fact, the intent with which the accused entered the bedroom of the prosecutrix.
    The fact that he actually offered no violence and withdrew when the girl threatened to call assistance does not in itself establish, in the view of the law,the proposition that he meant to persuade and not to force.

    It suffices if a correct list of the names of the jurors be served upon the accused. There is no law requiring him to be informed of the wards of the parish in which the jurors respectively live.

      A PPEAL from the Twenty-fourth Judicial District Court for the Parish of St. Mary. Allen, J.

      M. J. Cunningham, Attorney General, and W. B. Gordy, District .Attorney (Sigur, Milling & Saunders, of Counsel), for Plaintiff, Appellee.

      Wilson & Mayer, M. T. Gordy, Jr., C. A. O’Niell for Defendant, Appellant.
    Submitted on briefs December 4, 1897.
    Opinion handed down December 13, 1897.
   The opinion of the court was delivered by

Blanchard, J.

The accused was indicted for breaking and entering in the night-time, without being armed with a dangerous weapon, .a dwelling, with intent to rape.

He was convicted and sentenced to seven years at hard labor. He ■appeals, and in support thereof urges, first, that when the case .was called for trial a motion on his behalf for a continuance was ■filed on the ground that he had not been served with a correct copy of the venire, and that the same was erroneously overruled. The motion complained that the copy of the venire served upon the accused did not show the residences, by wards of the parish, of the jurors. It appears that a correct list of the names of the jurors was served upon him. This was all the law requires. R. S. 992.

The act relative to juries, approved July 9, 1896, did not change the old law in this respect.

We have been referred to no enactment that requires an accused person to be informed of the wards of the parish in which the jurors, called to try him, live.

The accused next urges error on part of the judge a quo in overruling his motion for a new trial based on the averment that the verdict of the jury was contrary to the law and evidence.

The reason assigned by the judge, in the bill of exceptions reserved to his ruling, is: “ There was, in my judgment, ample evidence before the jury to convince them beyond a reasonable doubt of the guilt of the prisoner. They were so convinced, and I agree with them.”

He-supplemented this by an elaborate written opinion, reviewing the whole ease, and concluding with a denial of the motion.

Taking the facts as set out in that opinion we can not say the law which should govern the case has been either misinterpreted or misapplied.

The ruling of the court below, denying a motion for new trial based on the allegation that the verdict is contrary to the law and the evidence, will not be disturbed unless clearly erroneous. 35 An, 96; 36 An. 341; 39 An. 19.

The mere fact, it is true, of a man’s uninvited and unwelcome presence at night in the bedroom of a woman does not, in law, evidence by itself a purpose on his part to have carnal knowledge of her by force, if necessary.

But it is for the jury to weigh all the attending circumstances, the situation of the parties, the degree of their acquaintance, or intimacy with each other, the character, repute and position of the woman against whom the evil design is formed, the eonductand declarations of the accused before and after the attempt, etc.

Weighiug these in the instant case, it was the jury’s province to determine the intent with which the prisoner had entered by breaking the bedroom of the prosecutrix. By their verdict of guilty they found his purpose was to commit rape if that were necessary to the attainment of his end.

The fact that he actually .offered no violence and left when the girl threatened to call her brother, does not in itself establish in the eye of the law the proposition that he meant to persuade and not to force.

. If a man resolves on a criminal enterprise and proceeds so far in it that his act amounts to an indictable attempt, it does not cease to be such, though he voluntarily abandons the evil purpose.

“ This doctrine,” says Bishop, Crim. Law (6 Ed.) Vol. 1, Sec. 732, “may not be established absolutely beyond controversy, but it is reasonably so.”

Thus, if a man assaults a woman fully intending to ravish her, but this intent subsides before the act is committed, and he desists, he may still be guilty of assault with intent to commit rape.” Id., Vol. 1., Sec. 733.

On an indictment for a technical attempt the jury may take into view the nature of an act proved to determine the intent which prompted it.

‘‘ And it is a rule of criminal evidence that a man is presumed to intend the natural, necessary and even probable consequences of what he intentionally does.” Id., Secs. 734, 735.

The offender’s intent, it is true, must be specific, to proceed to violence if necessary, or otherwise do what will be rape in law. Id., Vol. 2, Sec. 1136.

In the case under review the jury, by their verdict, are considered as having found the intent to be specific.

The effect of the verdict is to completely exonerate the young lady from any imputation of connivance at the accused’s presence in her chamber at dead of night.

Two other bills of exception, found in the record, are considered abandoned, since they are not insisted on, or even referred to, in the brief and argument submitted by counsel for the appellant.

Judgment affirmed.


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    No. 12,604.
    State of Louisiana vs. Alexander Washington.
    The belief in God and the sense of accountability to him for false swearing Is indispensable to the competency of a witness, and this requisite to qualify the witness is not removed by the Act No. 29 of 1886 relative to the competency of witness in criminal proceedings. 1 Greenleaf on Evidence, Secs. 867, 368; ltoscoe on Criminal Evidence, pp. 124, 129; 1 Archbold, pp.
    There is no exclusion as a witness of the child seven years of age, if possessed of the requisite intelligence and has the sense of responsibility to the Supreme Being, if the testimony of the witness is false. Ibid.

    APPEAL from the First Judicial District Court for the Parish of Caddo. Land, J.

      M. J. Cunningham, Attorney General, and John R. Land, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      J. M. Foster, Jr., for Defendant, Appellant.

      Submitted on briefs November 20, 1897.
    Opinion handed down December 13, 1897.
   The opinion of the court was delivered by

Miller, J.

The accused, convicted of rape, takes this appeal 'from the sentence.

The single question in the case is the competency of the prosecuting witness, admitted to testify over the objection of the counsel of the accused. The answers of the witness, a child seven years old, on the voir dire examination, are made part of the bill, and are in substance that she has no knowledge of God, “never heard of the devil' or the bad man, or what would become of her if she told a lie,” and had no knowledge of an oath. The statement of the trial judge in signing the bill is that the witness is a bright mulattress of the intelligence usual to her class. The contention of the defence is that her answers show she has no knowledge of right and wrong, nor belief in God, and an insensibility of the nature or obligation ■of an oath, and the exception reserved is to the admission of her testimony.

The basis on whiph testimony is received in courts is the oath -administered to the witness, and the oath is an appeal to God by the witness affirming that he will speak the truth on the witness stand. By some of the text writers the oath is deemed an invocation by the witness of divine punishment if the testimony is false. It is this solemn appeal of the witness to the Supreme Being that imparts the sanction on which the witness’ statements on the stand are accepted as testimony. But if the witness has no knowledge of ■God or belief in his existence, and shows no sense of accountability to him for false testimony, there is no guarantee of the truth of his testimony. The-sense of accountability to God of the witness if hé is untruthful in giving his testimony has been of universal recognition as the requisite of competency, and renders unnecessary any elaborate citation of authority. 1 Greenleaf, Secs. 365, 367.

Under the common law the competency of the witness under fourteen years of age was determined by his intelligence, including consciousness of responsibility to the Supreme Being for the sin of false swearing. If there was this consciousness and intelligence, as an English judge puts it, the tender age of the witness was no objection to his competency. If the child presented as a witness appears to be intelligent, but from defect of education or other cause has no sensibility of the nature of an oath, the opportunity will be afforded for his instruction on that point, so that he may have the requisite appreciation of moral responsibility when he comes to be sworn, but the application to impart such instruction must be seasonably made. This appreciation of responsibility in the future state for the sin of false swearing is required as the test of competency of children as .well as adults, and the test is applied without reference to the form of religious belief, but it is the appreciation fo a Supreme Being to punish sin and reward virtue in this life that the law exacts to make the witness competent. Roscoe Criminal Evidence, pp. 129, 124, notes at foot; 1 Archbold Criminal Practice and Pleadings, S. P. 490, notes at foot; 1 Greenleaf, Secs. 367, 369. It is quite manifest in this ease the prosecuting witness in .this case was, under the test under discussion, incompetent to testify.

Nor do we understand that the competency of the witness is attempted to be supported on any theory that she possessed any sense of moral or of any responsibility for false swearing. It is claimed that she was competent if of the requisite intelligence, and of this the trial judge was to determine. We should not feel at liberty in this, or perhaps in any case, to review a determination by the trial judge on the question merely of the requisite intelligence of a witness. But the ruling in this case is not on the issue only of intelligence, but is that our law dispenses altogether with that other test indispensable under the ’ common law to qualify any witness to take the stand. This complete removal of that heretofore regarded as indispensable to the competency of a witness is claimed to result from the act of our Legislature, No. 29 of 1880, to the effect that in criminal prosecutions the competent witness is a person of proper understanding. If this is the interpretation, the form of the oath remains, but the basis for it, the belief in God, is swept away. Our courts have held under this statute that infamy from conviction for crime no longer disqualifies. State vs. Mack, 41 An. 1080; State vs. McManus, 42 An. 1194. The other case cited on behalf of the State relates to the competency of the juror. The sense of accountability to God as the requisite to the fitness of the witness is not touched by these cases. The act of 1886 uses the same expression as to the competency of the witness in the criminal prosecutions that the Code employs in defining competency of the witness in the civil cases. C. C., Art. 2281. The argument for the State supposes the act of 1886 substitutes intelligence alone as the test of the witness’ competency. If so, the sanction of an appeal to God is equally dispensed with to qualify the witness in civil cases, but it has never been so understood. The “ proper understanding” by the argument presented to us embraces no belief in God, or appreciation of right and wrong, or difference between truth and falsehood. It seems to us the requisites hitherto the statute is claimed to have displaced are precisely those that make up the proper understanding the statute still exacts. Our attention has been directed to the California statute, admitting all to testify possessing “ the organs of sense and capacity to communicate their perceptions.” Mr. Rice, in his work on evidence, infers from this legislation that in California there can be no exclusion of witnesses on account of religious belief. There seems to be similar legislation in other States. The form of religious belief is certainly no ground to exclude the witness, but there must be a belief in the Supreme Being. Roscoe Criminal Evidence, p. 129; 1 Archbold, p. 486, notes; 1 Greenleaf, Sec. 369. Whether, even under the California statute, utter ignorance of God and of the nature of an oath would notwithstanding admit to the witness stand, is in our view unnecessary to inquire. Our statute requires proper understanding. In our view total unconsciousness of God, or of truth and falsehood, is incompatible with the test of the act of 1886.

In this discussion there is, of course, the appreciation of the grave consequences of exacting a test of the witness’ competency apt, perhaps, to exclude in some cases all proof of rape on a child of tender years or deficient understanding. On the other hand, there is the obvious danger of basing the sentence for crime, especially of death, on the prattle of a child capable, as one of the authorities expresses it, of “ being moulded like clay in the potter’s hands ” to repetition, or in the utterances of the child more advanced in years but not in understanding. 19 L. R., p. 608; The sentence for crime above, when the highest the law can interpose, should rest on a firmer basis than this record presents.. 4 Blackstone, p. 214, quoted in 1 Phillips on Evidence, p. 20. In our view the voir dire examination should have excluded the child from the witness stand, and we feel constrained to sustain the exceptions with a view to another trial.

It is therefore ordered, adjudged and decreed that the sentence be reserved and set aside, the case remanded and the prisoner held for another trial.


text:
    No. 12,597.
    The State vs. Joseph L. Populus.
    The question of unreasonable search was not before the court in the form re quirert. It was not raised in due time and noted.
    Many y-ars ago unauthorized lotteries had been prohibited, also the sale of tickets, drawing and advertisement.

      All lotteries were prohibited by subsequent legislation. It was by statute denounced as offence and as nuisance. Lotteries have a meaning well defined. The charter, in so far as related to lotteries, delegated needful power to the municipality to legislate relative to the lotteries, with a view of preventing the keeping of lotteries. The ordinance assailed was authorized by the statute which, though brief on the subject, is ample enough when taken with the different statutes, authorizing the City Council to legislate on the subject.
    APPEAL from the Second Recorder’s Court of the City of New Orleans. Bezou, J.

      James J. MeLoughlin, Assistant City Attorney, Samuel L. Gilmore, City Attorney, for City of New Orleans, Plaintiff, Appellee.

      Louis P. Paquet and A. M. Aueoin for Defendant, Appellant.
    Argued and submitted December 2, 1897.
    Opinion handed down December 13, 1897.
   The opinion of the court was delivered by

Breaux, J.

This was a prosection under a municipal ordinance relative to lotteries. This case and the case of the State against Riley are in the main similar, save that in the case now before us counsel for the defendant argued in the brief, and oral argument, two additional grounds upon which they claimed reversal of the judgments from which the defendant had appealed, viz.:

1. That the ordinance illegally authorized a search warrant.

2. That the ordinance was ultra vires; the municipality had not. authority to pass the ordinance.

The part of the ordinance assailed reads: “That it shall be unlawful for any person or persons to keep a lottery office in any place or manner in the city of New Orleans, for himself or others, as an individual, partner, stockholder, officer, manager or agent.

“ That it shall not be necessary to prove that the actual sale of lottery tickets in any space, house, office or premises, but any sign, tickets, sheets, bulletins or other device used to indicate that tickets are kept for sale, or to give information as to the result of any drawing, shall be taken and accepted as a sufficient proof of the keeping of a lottery office or shop.”

The remainder of the ordinance sets forth the penalty it is possible to inflict upon conviction before the recorder within whose jurisdiction the offence is committed, and under the pleadings presents no issue for our determination.

Taking up the first objection for our determination we have not found a bill of exceptions of record presenting the point argued.

The ordinance itself is absolutely silent in regard to all warrants of arrest, or search warrants, and the demurrer filed is equally as silent upon the subject, save general averments, not specially directed against issuing secret warrants under an alleged illegal and ultra vires ordinance, nor directed against the method pursued bo secure testimony under search warrants which an ordinance could not make legal.

For these reasons it is not possible to pass upon the grounds stated.

The second objection sets forth that the ordinance was illegal and ultra vires.

In taking up this ground for determination, it is we think proper to state that a penal statute of the State makes the drawing of lotteries and the selling of lottery tickets an offence.

The section of the ordinance assailed was copied from it. Sec. 7 and 8 of the Act of 1894 relative to lotteries.

There were acts of date prior prohibiting lotteries.

Under the charter of 1882 the city of New Orleans was given authority to imprison “ all bunco-men, fraudulent and unauthorized lottery men.”

The delegation of power was ample enough to authorize the city to adopt an ordinance relative to lotteries. This delegation of power to the municipality, under its charter, was not repealed or affected by subsequent legislation not in conflict with this provision of the charter of 1882.

Act 45 of 1896 is not in conflict with the prior acts on the subject— on the contrary, it is in accord; it gives authority to ordain as relates to “ lottery men.” The brevity of the delegation of power contained in the last act is amplified sufficiently to sustain the ordinance by prior legislation relating to lotteries.

The other points raised by the defendants have already been passed upon in the ease we have before cited.

For the reasons therein assigned and the views we have here expressed it is ordered and adjudged and decreed that the sentence and judgment appealed from are affirmed.

Judgment affirmed.

Mr. Justice Blanchard takes no part on account of absence when the case was argued.


author: Nicholls, C. J.

text:
    No. 12,570.
    Barber Asphalt Paving Company vs. New Orleans & Carrollton R. R. Co. et al.
    The judgments of the District Court are presumedly correct and appellate courts are justified in affirming them on the strength oí that presumption itself when counsel do not, either by brief or argument, make an appearance to set forth the specific grounds of complaint whiclrthey could urge against the con-elusions of the trial judge. Freyhan vs. Berry, 49 An. 303.
    A PPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      Farrar, Jonas & Krutlsehnitt & Gurley for Plaintiffs, Appellees.

      Dart & Kernan for New Orleans & Carrollton R R. Co., Defendants and Appellants.

      Samuel L. Gilmore, City Attorney, for City of New Orleans, Defendant, Appellee.

      Submitted on briefs November 18, 1897.
    Opinion handed down November 29, 1897.
   The opinion of the court was delivered by

Nicholls, C. J.

This case comes up before us on the following agreed statement of fact:

“ When the Oarrollton Railroad Company bought the extension of its franchises from the city of New Orleans, it agreed to expend the sum of one hundred and fifty thousand dollars in paying the cost of paving the wood side of St. Charles avenue, from Louisiana avenue to Carrollton avenue, and to use any unexpended balance left over from this paving to pave Jackson street, from the terminus of the asphalt paving to Tchoupitoulas street, with gravel, and the short block between Tchoupitoulas and the levee with Belgian block upon a concrete foundation.
“St. Charles street was paved with gravel, but the city of New Orleans did not, as provided in the contract, let any contracts to pave Jackson street, and there remained in the hands of the company, applicable to this pavement, the sum of five thousand three hundred and ninety-one dollars and forty cents.
“ In this condition of affairs the city of New Orleans made a contract with the Barber Asphalt Paving Company to pave with asphalt Jackson street, from St. Charles street to Prytania street, and agreed that the cost of this pavement should be paid out of this fund in the hands of the New Orleans & Oarrollton Railroad Company.
“Before this contract was signed the board of directors of the New Orleans & Oarrollton Railroad Company passed a resolution setting forth the above facts and declaring that it hereby assents to the said contract between the city of New Orleans and the Barber Asphalt Paving Company relative to the paving of Jackson street, from St. Charles to Prytania street, in so far as it is legally able to consent, and hereby agrees to pay the city’s portion of the said pavement of Jackson street under the said contract with the Barber Asphalt Páving Company to the amount and extent of the balance in its hands, if necessary, provided it has the legal power to make such consent, and provided further that said money shall only be paid on the judgment of the Supreme Court of the parish of Orleans, State of Louisiana, declaring that this company has the legal power under the circumstances of the case to give its consent to the pavement aforesaid, and to the change in the appropriation made in the original contract between the company and the city of New Orleans relative to this franchise, provided that the city of New Orleans shall be a party to said suit and shall be bound thereby.
“ The Barber Asphalt Company completed its work, received certificates therefor from the city, and the city of New Orleans passed ordinances appropriating the amount due the Barber Asphalt Company, to-wit, two thousand eight hundred and twenty-nine dollars and seventy-four cents, payable out of the fund in the hands of the Carrollton Railroad Company. Thereupon the Barber Asphalt Company filed this suit, making the city and the Carrollton Railroad Company parties defendant. The city answered, joining the Barber Asphalt Company in its demand against the defendant. The Barber Asphalt Company admitted all the facts set up in the exhibits annexed to the petition, and, for the purpose of making an issue in the case, denied its legal right to consent to the diversion of the appropriation from the paving work mentioned in its franchise contract.
“ The court below, rendered a judgment in favor of the Barber Asphalt Company, and the Carrollton Railroad Company has, as a matter of form, appealed.
“ The Carrollton Railroad Company accepts the foregoing statement of facts made by the Barber Asphalt Paving Company, and submits to the court the legal question as to its right to consent to the pavement of a different part of Jackson street from that mentioned in the franchise contract.”

Appellant has filed no brief, but left to the court itself the ascertainment of what the legal rights and obligations of parties are. In the case of Freyhan vs. Berry, 49 An. 306, we stated that judgments of the District Court are presumedly correct, and that appellate courts are justified in affirming them on the strength of that presumption itself where counsel do not either by brief or argument make an appearance to set forth the specific grounds of complaint which they could urge against the conclusions of the trial judge. We presume appellant’s contention to be that the owners of property abutting on Jackson avenue “ from the terminus of the asphalt paving to Tchoupitoulas street,” and “on the block between Tchoupi-toulas street and the levee,” may have acquired, under the original contract between the city of New Orleans and the New Orleans & Carrollton Railroad Company, a vested right to have the balance of the one hundred and fifty thousand dollars contracted to be paid by the railroad company for its franchise remaining unexpended after paying the cost of paving the wood side of St. Charles avenue, from Louisiana avenue to Carrollton avenue, applied to paving Jackson street from the terminus of the asphalt paving to the levee. That having acquired such right, the city and the railroad company would be powerless by agreement and consent between themselves to modify the original contract and divert the appropriation of the money to the paving of any other portions of Jackson avenue than those first specially designated. Had the city and the railroad company in their contract provided (as they had the legal right to do) that any portion of the one hundred and fifty thousand dollars contracted for therein which might remain unexpended, as explained, should be turned over to the city authorities, and had that balance been in fact paid to them, it could scarcely, we think, be questioned that had the city directed that Jackson street, between the terminus of the asphalt paving and the levee, should be paved and the costs thereof paid for by the moneys turned over to it by the Oarrollton Railroad Company, the city would have the legal right to repeal the ordinance passed by it to that effect and devoted the money to the paving of some other portion of the street. The owners of property fronting on the parts of the street covered by the ord inance would have had no shadow of right to control the action of the corporate authorities in this matter and insist that the ordinance was irrepealable inasmuch as by such repeal their interests would be seriously affected and injured by a repeal. Schmidt vs. City of New Orleans, 48 An. 1440; State ex rel. Paving Co. vs City, 48 An. 649.

The situation is not changed by the fact that the particular portion of the avenue which it was originally proposed to pave should have been designated in the eontract between the city and the railroad company. The railroad company might have had legal ground of complaint had an alteration been attempted to be made without its consent, but the property owners referred to would have had no legal standing to complain. The city both in making the original contract and in modifying it was acting in the exercise of its general administrative powers and not in any wise on behalf of any special class of citizens or property owners.

The property owners whose adverse future action defendant seems to fear, would have been called on to pay no portion of the cost of the originally contemplated paving, and the clauses in the contract relative to the street in front of their premises wexe in no sense a stipulation pour autrui operating in their favor.

The agreed statement in the record discloses the fact that no contracts were made based on the contract as originally drawn up. We see no ground for apprehension on the part of appellant to liability as for an unauthorized payment should it pay plaintiffs’ claim.

The judgment of the District Court is hereby affirmed.