text:
    No. 13,554.
    Edmond Kird vs. New Orleans and Northwestern Railroad Company.
    Syllabus.
    1. The exception of no cause of action (demurrer) admits, for the purpose of the trial thereof, the truth of the averments of the petition.
    2. Conceding the matters of fact alleged, this plea tenders the issue, on the face of the petition, that no case is presented entitling the plaintiff in law to recover.
    3. Cotton on a railway platform, at a station, Is presumed to be in the company’s custody and care, and responsibility for the manner in which it is placed or piled on the platform is presumed to rest on the company. The burden of rebutting this presumption is on the company, if it may be rebutted at all.
    ■4. Cotton in bales piled upon a platform in such way that the bales project over the same towards the railway track, so that they become an obstruction to passing trains, is manifestly carelessly stored.
    5. It is gross carelessness and negligence to construct a platform so near a railway track that cotton piled properly upon it becomes an obstruction to passing trains.
    6. It was gross negligence on part of the engineer of the train to have endeavored to pass on his way when it was evident that the proximity of the cotton to the track, as piled on the platform, would result In the train striking the same. A prudent course to pursue would have been to have delayed his train until the obstruction was removed.
    7. Human life and limb weigh more in the scales of consideration than do' the dispatch and speed of railway trains.
    8. Where the arm of a passenger was projecting from a car window and was injured by one of the bales from the platform faling upon it. it is a question to be determined from the evidence, under all the circumstances of the case, whether or not this was negligence on part of the passenger barring recovery.
    APPEAL from tbe Fifth Judicial District, Parish of Morehouse— Potts, J.

      E. Tyler Lamkin and W. F. Millsaps for Plaintiff and Appellant.

      H. Flood Maddison and Lazarus & Luce for Defendant and Appellee.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff appeals from a judgment dismissing his suit on exception of “no cause of action.”

It is a familiar rule of practice that this exception (demurrer) is held to admit, for the purpose of the trial thereof, the truth of the averments of the petition.

Conceding the matters of fact alleged, this plea tenders the issue, on the face of the petition, that no case is presented entitling the plaintiff, in law, to recover.

The case here presented, epitomized, is as follows:—

Plaintiff’s wife took passage on defendant’s company’s train at the village of Oak Eidge, in the Parish of Morehouse, and entered one of the coaches.

A window was at the end of the seat she occupied. This window was open, and seating herself by it the lady rested her arm upon the sill of the window.

Immediately thereafter the train resumed its journey and before it had proceeded 200 feet the locomotive, or one of the cars in advance of the one in which this passenger was, struck, in passing, some bales of cotton that had been placed or piled upon defendant company’s platform erected at that station for the reception and shipment of cotton and other produce.

This impact disturbed the balance of one of the bales, it toppled and fell on and towards the train, just as that part of the car in which the wife of plaintiff was seated passed that point.

The bale of cotton in thus falling struck the arm of the passenger, breaking it above and below the elbow and otherwise injuring her.

Gross carelessness and negligence on part of the defendant and its employees is charged in thus constructing, maintaining and using for its business a platform unusually and dangerously near the railway track or road-bed, and in depositing or permitting cotton to be deposited and piled on the same in such way as to project over the platform towards the track and thus come in contact,- as an obstruction, to passing trains.

It is further charged that shortly after this accident the defendant caused the platform, or the portion thereof nearest the road-bed, to be removed.

The character and extent of the injury sustained, suffering undergone, quantum of damage, etc., are set forth.

Trial by jury was asked and allowed.

The first contention advanced on behalf of defendant is:—

That the petition does not disclose that the cotton which was on the platform was received by defendant, or was in its care or under its control at the time of the accident.

This is overthrown by the clause of the petition which alleges that “before said train had proceeded 200 feet the locomotive, or some of the front coaches, struck one or more bales of cotton which had been deposited on a platform built by defendant company for the reception and shipment of cotton.”

Here is an averment which charges the platform to have been erected by defendant, belonged to defendant, was used in its business by defendant. Also that on this platform the cotton in question had been deposited, and it follows that it had been deposited by order or permission of defendant’s agent and for shipment over defendant’s lines. Found on that platform the cotton is to be considered as having been in its custody and care, unless otherwise shown by the proof, and for the manner in which it was placed or piled and suffered to remain on the platform the responsibility, it would seem, rests upon defendant.

The next contention is:—

That the petition does not disclose how the cotton was placed or stored upon the platform, whether properly or carelessly.

This has even less merit, for the petition charges that the cotton piled upon the platform projected over the same towards the railway track. If it did, so much as to be an obstruction to passing trains, it was manifestly “carelessly” stored.

Another contention is:—

That the petition does not disclose there was anything wrong or defective, or what was wrong or defective, in the construction of the platform.

How can this be gravely argued when it is distinctly averred that the accident to plaintiff was occasioned by the gross carelessness and negligence of defendant in constructing the platform “dangerously and unusually near the track”?

But the main contention is:—

That the petition charges the cotton, in falling, struck the arm of complainant’s wife, “which was then lying or resting on the window sill of said ear window.”

It is insisted that the position of the lady’s arm shows contributory negligence, barring recovery, and the proposition appears to be supported by the following authorities:

78 Va. 645 (49 Am. Rep. 388); 5 Bush, 1 (96 Am. Dec. 320); 29 Ind. 82 (92 Am. Dec. 336); 3 Allen, 18; 56 Penn. St. Rep. 294; 39 Md. 329 (17 Am. Rep. 568); 12 N. Y. 236 (64 Am. Dec. 502); 7 Allen, 208; 42 Penn. St. Rep. 186, and others.

On the other hand, many authorities appear the other way, of which the following are some:

21 Penn. St. Rep. 203; 17 Wis. 487; 51 Ill. 333; 9 Harris (Pa.) 203; 92 Penn. St. 475; 39 Mo. 474; 37 Mo. 539; 34 La. Ann. 146; 58 Ill. 272. And to these must be added the authority of Mr. Wharton, who,' in his “Law of Negligence,” Sec. 362 (2nd ed.), indicates, by his comments on decisions which hold the contrary view, what his own opinion is.

While not now passing directly upon the point raised and reserving opinion thereon until such time as the case on its merits may be before us, we incline to this view:—

That a passenger who rests his elbow on the sill of an open window in a railway car is not guilty of any want of ordinary care, in the absence of notice, or warning, not to do so, or of information which should reasonably lead him to apprehend danger or injury.

Whether this passenger merely rested her elbow on the window sill, projecting out perhaps not more than an inch, or whether she had her arm full length out of the window at the time of the accident, is a matter of proof. If the latter, it might well be she was guilty of such negligence as to bar recovery.

So, where the arm of a passenger was projecting from a car window and was injured, it is a question for the jury, under all the circumstances of the case, to say whether this was negligence on the part of such passenger barring recovery. Spencer vs. Milwaukee R. R. Co., 84 Am. Dec. 758.

But even the contributory negligence of the plaintiff will not exonerate defendant if the latter, by the exercise of proper care, could have avoided the injury which is the subject of the action.

Louisville R. R. Co. vs. Collins, 87 Am. Dec. 486.

Here, it seems to us that the proximate cause of the accident was the storing or piling of the cotton upon the platform in a careless manner, and that if proper care in this regard had been observed the injury to plaintiff’s wife would not have occurred.

Again, while the train was stopping at the station at which plaintiff’s wife boarded the car, this obstruction to the free passage of the train must have been plainly visible to the engineer of the train, for it was not over 200 feet away and ahead of his locomotive.

It would appear, then, to have been gross negligence on his part to have endeavored to pass on his way when it was evident that the proximity of the cotton to .the track, as piled on the platform, would result in the train striking the same. A prudent course to pursue would have been to have delayed his train until the obstruction was removed.

Human life and limb weigh more in the scales of consideration than do the dispatch and speed of railway trains.

The impression made on the court, in this preliminary review of the case, is that the negligence of this passenger, supposing her elbow only to have been resting on the window sill, is remote compared with that ■of the defendant company in permitting cotton received by it for shipment to be. so placed on its platform as to he struck by the passing train, and in attempting to pass the train on its way with this obstruction in full view of the engineer, supposing that to have been the case. R. R. Co. vs. Pondrum, 51 Ill. 333.

We are not apprised by the pleadings whether the time of the accident was day or night, and this hut emphasizes the necessity for a trial of the case on its merits when all the facts may he brought out.

The judgment dismissing plaintiff’s suit on the exception filed is erroneous, and, accordingly, it is ordered, adjudged and decreed that the same he avoided and reversed and the cause be remanded to the court a qua for further proceedings according to law — costs of this appeal to he borne by defendant and appellee.

Rehearing refused.


source: Caselaw Access Project

author: Nicholls, O. J.

license: Public Domain

text:
    No. 13,637.
    State of Louisiana vs. Fred. H. Haab.
    Syllabus.'
    1. The extent to which a witness may be cross-examined is submitted to the discretion of the district judge, and this discretion will, not be interfered with unless it be abused. If the real object of a series of cross-questions as to the particulars of the past life of a witness, in a ease of homicide, be not to affect his credibility, but incidentally to attack the character of the deceased without the prerequired foundations then existing for so doing, or to simply prejudice the jury against the witness, the court is authorized to check such examination. Defendant is not entitled to cross-examine a witness upon collateral and irrelevant matters, in order through contradiction of the testimony which might be elicited therein, to impeach his credibility.
    2. Defendant, charged with murder, is not entitled to enquire into the character of the deceased as being a man who was dangerous and violent, in the ah sence of evidence of an overt act on the latter’s part which would excuse or mitigate defendant’s act.
    3. The court is authorized in the exercise of proper legal discretion to permit one of defendant’s witnesses, who had been cross-examined by the State and then re-examined for the defense, to be re-cross-examined by the State.
    4. Where the court refuses to sign a bill of exception presented to him, on the ground that no such bill was reserved, and a bill was reserved to such refusal, the statement of the court in the second bill that no bill was originally reserved will be taken as true.
    5. The court is directly concerned in understanding the testimony given by the witnesses in a ease, in order to guide its own actions and rulings, and therefore it has the right to question itself, the witnesses to have the scope of their testimony made clear, but the conduct of criminal cases should be left as much as possible in the hands of the State’s officers specially entrusted with conducting them. Although it would have been better, in a particular case, that an incidental remark made by. a court in the course of its questioning of a witness, should not have been made, no cause for reversal exists' where it manifestly would not have influenced the jury.
    6. A homicide committed during a drunken debauch is not rendered excusable by the fact that long-continued indulgence in drinking by the party committing the killing had created in him a desire to drink so strong that it was out of his power to resist.
    7. Where a party in possession of his mind enters into a voluntary drunken debauch he is not legally excusable for a homicide which he commits during its continuance and while in a condition of drunkenness, even though this drunkenness may be such, at the time of the commission of the homicide, as to render his mind incapable of knowing right from wrong. If the debauch be one continuing voluntary drunken debauch, starting with the sanity of the party engaged in it, the mere length of time the debauch may extend over is immaterial. Drunkenness for a week no more excuses a homicide committed, as its immediate and direct result, than would drunkenness for an hour.
    APPEAL from the Criminal District Court, Parish of Orleans— Moise, J.

      Walter Guión, Attorney General, and' J. Ward Gurley, District Attorney, (Lewis Guión and Joseph E. Generally, of Counsel), for Plaintiff, Appellee.

      Chandler C. Luzenberg for Defendant, Appellant.
   The opinion of the court was delivered by

Nicholls, O. J.

In this case, defendant, Fred. H; Haab, indicted for murder, convicted of manslaughter and sentenced to imprisonment for six years, at hard labor, in the penitentiary, has appealed from the sentence rendered, upon a number of grounds embodied in bills of exception and assignment of error, which we have examined with great care.

We think the testimony covered by the first six bills of exception, which the court refused defendant the right to introduce, was properly excluded. Courts have permitted counsel to go very far in their cross-examination of the State’s witnesses when the purpose assigned is the attacking of their credibility, but the trial court is authorized to check this cross-examination when, in its judgment, it is about to exceed proper limits. We will not interfere with the exercise of that authority except in case of its abuse. We do not think that in this instance there was such an abuse. We think the court was justified in attributing the object of the questions propounded to the witnesses to be not so much' the attacking of the! credibility of the witnesses as the exciting of a prejudice against them on the part of the jury and the attacking of the character of the deceased prior to there existing any legal foundation warranting such an attack.

The matter sought to be examined into on cross-examination of a witness, for the purpose of attacking his credibility, should have a legitimate bearing upon that particular subject. Counsel should not be permitted to call upon him to expose particulars of his past life simply to attempt to bring him into reproach before the jury. The witnesses are entitled to proper protection from the court from unnecessary and improper specific investigation of their past history. It is claimed that the district attorney opened the door to this inquiry in one instance, at least, by seeking, by anticipation, to fortify the:' respectability of the witness by showing his past associations. Granting that to be true, the court permitted the defense to go quite as far as it was entitled to towards breaking the force of such testimony.

In connection with this particular subject it may be well to say that a person can not cross-examine a witness upon irrelevant, collateral matters for the purpose of attacking his credibility by disproving the testimony which he may give in respect to such matters on the cross-examination.

Bill of exception No. 7 is to the refusal of the judge to sign bill o£ exception No. 7 when presented to him for that purpose. The court’s statement that no such bill of exception, as bill No. 7, had been reserved must be taken as true as matters are presented. The court was justified in refusing to sign the bill under such circumstances.

Bill Nos. 8 and S'call-in question the right of the court, and the exercise by the court, of the right to permit the State to re-eross-examine witnesses for the defense who had been examined by the defense, cross-examined by the State, and re-examined by the defense. The authority of the court to permit this re-cross-examination is unquestionable. We do not think the authority was improperly exercised.

Bill No. 10 is to the question by the judge to examine in presence of the jury Dr. Maylie, a medical expert, witness for the defense, touching his testimony. It is claimed that through this questioning the judge communicated to the jury his impressions or opinions of the case. It is the right and the duty of the judge to keep advised of the testimony given in a case and to understand its scope so as to be able to deal with it in his charge to the jury, and on the application for a rehearing should a verdict be given against the prisoner. If he does not.understand it fully he has the right to have it made explicit. It is well, however, for the trial judge to leave, generally, as far as possible, the conduct of criminal cases to the State officers entrusted with that duty; as the jury is very-apt to form from the acts and questions of the judge an impression as to his views of the case.

We do not think the accused was prejudiced by the court’s action, though there was one remark which might well have not been made.

The 11th hill is to the refusal of the court to permit a Mrs. Levi to testify to what is called a threat communicated by her to the accused. The testimony, though not given to the jury, was taken down by a stenographer and is annexed to the bill.

We do not find in it, when examined, the evidence of a, threat of any kind whatever. Counsel of defendant was unable himself to state in what manner it would have affected his client’s case, and the admissions made by him in the discussion which arose as to its admissibility withdraws from the testimony any value whatever. It was, in our opinion, irrelevant and unimportant testimony.

The 12th hill was to the refusal of the court to allow the Chief of Police, Gaster, to testify to the general reputation of the deceased as being a dangerous and violent man. Under the judge’s statement as to the testimony in the cause, no foundation had been laid for the introduction of this testimony and it was properly excluded.

The refusal of the judge to give the special charge referred to in bill of exception No. 14 was correct. As the charge asked for was worded, it was equivalent to saying that a homicide, which would not be excusable because committed in a fit of voluntary drunkenness so complete as to render the person committing the homicide unable to distinguish at the time, between right and wrong, would become excusable if it could be- shown that the fit of drunkenness was altogether attributable to an irresistible desire for drink due to long continued indulgence in intoxicating liquors. Bad habit, intensified by long continuance, does not work exemption from legal" responsibility. The charge would raise confirmed drunkards into a specially favored class.

Counsel of the defendant has prefaced most of his bills of exception to the refusal of the judge to give to the jury special charges which he requested,' and to the bills taken to the general charge of the judge with long statements as. to what he avers to have been the evidence in the case, not as immediate predicates to the requested charges, but with the evident object and purpose of- arguing to the court that such being the evidence in the case, the requested charges were properly asked and improperly refused, and the portion of the general charge objected to were properly objected to. The judge, in different addenda to the bills controverts some of these'recitals entirely; others he modifies. There are so many of these special charges and recitals of evidence that it would extend this opinión beyond all reasonable length to give the same in detail. Collating and comparing them, we think that the evidence disclosed that, for some time previous to the homicide, at the time of the homicide, and up to the time of his arrest, the accused had been continually drinking heavily and getting drunk; that he was drunk at the time of the homicide. It is claimed for the defense that, during this whole period the condition of his mind was such as to render him unable to distinguish right from wrong, and that his long continuance in excessive drinking had brought him into such a condition that he was Unable to resist drinking and getting drunk; that his condition of mind was such as' to give rise to delusions on his part that he was about to be attacked and killed.

It is claimed that during this long debauch he had delirium tremens also at some.time prior to the homicide; it is claimed that there was evidence to show that he was in fact crazy or insane at the time of the homicide, and that though' this was the result of heavy drinking the accused was, nevertheless, excusable1 for the homicide.

Referring to one of the special charges requested by the accused, wherein reference is made to a person being first crazy and then getting drunk, and while “crazy drunk” committing homicide, the court said:

“No evidence supports this charge. The accused was never deranged before this particular spree, nor after. It was one continuous debauch beginning, according to his witnesses, about six weeks before the homicide, while the alleged insanity appeared about two weeks before the homicide. After the killing the accused recovered in a few days. Drunkenness pre-existed the alleged insanity.” The judge further said ■that he had, in his general charge, announced the principles of law declared in that charge, though he did not think it applied to the defendant’s ease. He did charge that “if the intoxication was the result of pre-existing insanity and the accused, by reason of such preexisting insanity could not overcome his desire to gratify his thirst for drink, then such insanity would be the actuating cause of the crime, and the jury should so consider it.' If, however, his excessive indulgence in liquor was caused by his own negligence and he had an opportunity of correcting his weakness, and failed to do so, he is responsible for the results of his own excesses, accordingly, as you have been instructed in this charge, that is, if a temporary result, he would be responsible; if a permanent result, he would be irresponsible.”

The district judge, at the foot of the bill of exceptions taken by the accused to his refusal to give to the juty the special charge that “the law recognizes the existence of a form- of diseased ’mind known as delirium tremens, induced by the excessive use of stimulating drink, and in the event of a homicide committed by one laboring under such disease to a degree that dethrones reason and prevents him from knowing the difference between right and wrong, such homicide would be excusable, although such mfental disease was not permanent ’ and was due to the excessive drinking of alcoholic stimulánts,” made the following statement, evidently intended for the Supreme Court’s consideration and not that of the jury:
“If Haab’s condition at the time he fired the fatal shot could be properly designated as delirium tremens (which I deny), it must be shown to be — (1) a fixed, settled or permanent condition and not a temporary one, as in this ease. If a man voluntarily drinks to excess, temporarily destroying his mental soundness to such an extent as not to'know the difference between right and wrong, and while in this condition commits an unlawful homicide, his act is inexcusable, whether you designate his mental condition as simple drunk, drunk to stupefaction, crazy drunk or insane, dementia or delirium tremens. The temporary character of his affection makes him responsible. A state of disease brought about by a person’s own act, as delirium tremens caused by excessive drinking, is no excuse for committing a crime, unless the disease so produced is permanent. Withaus & Beeker, vol. 3, page 491; 1 Hale P. C. 32; 4 Black, 26; State vs. Kramer, 49 Ann. 774. This is the common law.

(2) It must also be shown that the delirium tremens was not the immediate product of excessive drinking, but a remote consequence of it. The facts are that Haab’s mental condition may have been unsound at the time of the homicide, but was the immediate result of his undue indulgence in spirituous liquors and not the result of any previous sprees or drunkenness; that after the killing he was jailed and recovered in five or six days permanently. Under this state of facts the court declined .to make any distinctions with reference to his unsound condition of mind. If he was merely ‘crazy drunk,’ as it is vulgarly called, he would -be just as much entitled to an acquittal if he could not tell the difference between right and wrong as he would be if his condition was designated as a delirium.

“Criminal indulgence in the use of spirituous liquors would be the ba.sis of both conditions.”

Under other bills the court said:

“-There was no evidence to show that delusion in this ease was occasioned by a ‘fixed’ frenzy. There was nothing ‘fixed’ in defendant’s mental condition. The evidence shows fhat his alleged mental derangement as a fact was temporary, and was created by the excessive use of spirit-uous liquors. The delusions, if any, were incidents to the excessive drinking.- As to the statement that this accused was both drunk and insane: This phraseology máy be misleading. It may imply there was evidence to show that the alleged insanity and drunkenness were two separate and distinct conditions proceeding from different causes. There .was no evidence in support of such a fact. The evidence showed that Haab’s symptoms, whatever they were, proceeded from one and the same cause and were its immediate and connecting effects, differing only in degree. Naturally, the continued use of spirituous liquors on one debauch without interruption, as in this case, would intensify each succeeding effect. A man who becomes ‘crazy drunk’ reaches this condition by stages.”

Eeferring to one of the charges requested, but refused, the court said:

“It failed to distinguish between a mental unsoundness, the immediate result of excessive drink, and one by long continued habit, a remote consequence of it. If one should become voluntarily drunk in the morning, indulging to such excess during the day as to lose all power of controlling the desire for drink and continuing his excesses at night, until drunk to madness, and in this condition should unlawfully slay another, such killing under the charge requested would be excusable.”

In his reasons for refusing a new trial the judge said:

“The accused began drinking immoderately and was under the influence of liquor to a greater or less degree continually and without intermission for two weeks before the homicide, until its effects wore off, after his arrest and incarceration, when he ceased drinking. It makes no difference by what terms you designate the temporary effects of his excesses, whether called an ordinary drunk, drunk to stupefaction, delirium, tremens, drunk to frenzy, insanity, etc., if it were the immediate product of this particular debauch he is responsible for his acts under its influence. There was no evidence whatever that Haab’s condition was a remote consequence of long continued prior excesses, nor that he had ever been in this condition before. In the opinion of the court, at the time of the firing of the fatal shot Haab was not suffering from delirium tremens; he was merely afflicted with that nervousness that always accompanies immoderate indulgence in liquor.”

We have referred to United States vs. Drew, cited by counsel, and reported in 5 Mason’s Reports, page 29, C. C. R. The accused upon an admitted state of facts was declared insane and discharged. In die course of his opinion in the case, Judge Story used the following language:

“In general, insanity is an excuse for the commission of every crime, because the party has not the possession of that reason which includes responsibility. An exception is when the crime is committed by a party while in a state of intoxication, the law not permitting a man to avail himself of his own gross vice and misconduct to shelter himself from the legal consequences of such crime. But the crime must take and be the immediate result of a fit of intoxication and while it lasts and not as in this case a remote consequence superinduced by the antecedent exhaustion of the party arising from gross and habitual drunkenness. However criminal, in a moral point of view, such an indulgence is, and however justly a party may be responsible for his acts arising from it to Almighty God, human tribunals are generally restricted from punishing them, since they are not the acts of a reasonable being. Fiad the crime been committed while defendant was in a fit of intoxication he would have been liable to be convicted of murder. As he was not then intoxicated, but merely insane from an abstinence from liquor he cannot be pronounced guilty of the offense. The law looks to the immediate and not to the remote cause — to the actual state of the party and not to the causes which remotely caused it.
“Many species of insanity arise remotely from what, in a moral view, is a criminal negligence or fault of the party, as from religious melancholy, undue exposure, extravagant pride, ambition, etc. Yet such immunity has always been deemed a sufficient excuse for any crime done under its influence.”

We think it fairly appears from the recitals of the accused and those of the judge that the accused was in a state of intoxication at the time of the homicide, and that his mental condition at that time, whatever it might be, was the immediate and direct result and not the remote result of voluntary drunkenness. When we say direct and immediate result, we mean to say that it arose during a condition of drunkenness and pending a single, continuing, voluntary drunken debauch which, at its origin, started with the accused in a condition of sanity. The results were in a legal sense immediate and direct results, though the beginning of the drunken debauch may have dated some days back, or even some weeks before the homicide.

We think, under the recitals in the ease, that it is precisely such a one as Mr. Justice Story refers to in which he says, “insanity or a condition of mind substantially that of insanity, would not serve as a shelter or a protection against crime.”

We think that this was the view taken by the district judge of the facts and law of the case, a view which he endeavored to place before the jury in his charge. We think he fairly advised the jury as to the law, though there were some expressions in his charge which he might well have omitted, as they doubtless did not instruct and may perhaps have to some extent confused the jury. We do not think, however, they were led into error or misled by thesei expressions, or that they were prejudicial. It is well for a judge charging a jury as to insanity to avoid as far as possible the use of technical medical terms as to the various forms and shades of mental disease.

They are not likely to enlighten or impress the jury and are very liable to technical objections.

We do not think there is any ground for the reversal of the judgment, and it is hereby affirmed.

Eehearing refused.


author: Breaux, J. Blanchaed, J.

text:
    No. 13,770.
    Amos G. Carr vs. Miller-Morris Canal, Irrigation and Land Company, Limited.
    Syllabus.
    1. Plaintiff alleged a verbal contract with defendant to supply him water to irrigate his rice crop. Defendant, for answer, pleaded the general issue, denied each and every allegation of the petition and averred that plaintiff set out to make and did make a “providence crop” on his lands, and refused to take water from defendant company. Helé: This answer does not set up a special defense which is to be considered as admitting the verbal contract, and then seeking to avoid same by averments of plaintiff’s refusal to take water under the contract.
    2. The answer is not a plea of confession and avoidance. On the contrary, it is regarded as a special denial of any contract to supply water, and the burden to prove it was on plaintiff.
    On Application fob Reheaeing.
    1. In an action for damages arising from the lack of water to raise a crop of rice, the failure of defendant to furnish water to irrigate plaintiff’s crop is not sustained by the testimony.
    2. The year 1898 was the first year that the defendant sought to irrigate rice crops and it was also plaintiff’s first attempt to cultivate rice. There was a ' want of thorough preparation on the part of each. Plaintiff failed to avail himself of the defendant’s offer to furnish water to irrigate and did not, in any respect, seek to minimize the damages.
    3. An alleged verbal agreement was embodied in a subsequent written contract without reserving any of the rights now claimed, by plaintiff. The terms and conditions of the written contract have not been complied with by the plaintiff.
    4. The special plea, as interpreted by the majority of the court, affords no ground upon which the court can hold the defendant liable.
    APPEAL from the Eighteenth Judicial District, Parish of Acadia— DeBaillon, J.

      Story <& Pugh for Plaintiff, Appellee.

      Philip J. Chappuis for Defendant, Appellant.
   The opinion of the Court was delivered by

Breaux, J.

On Application for Rehearing by Blanchard, J.

Breaux, J. This is an action to recover damages which plaintiff alleges he has suffered owing to defendant’^ breach of an irrigation contract.

In 1898 he had become the lessee of a tract of land for the purpose of cultivating rice, which land was subject to irrigation by the canal system of the defendant company. Pie avers that he contracted verbally with the defendant to furnish him water to irrigate his crop and that for this water plaintiff bound himself to give one-fifth of all the rice raised on the farm thus irrigated. He sets out that this verbal agreement entered into in the early part of the year was subsequently embodied in a contract between himself and the defendant company, dated August 2nd, 1898, which he annexes and makes part of his petition. Under this contract, he was to deliver one-fifth of his crop for water supply, but under the verbal agreement nothing had been said (although he alleges that this was the consideration) about the price of the water rental.

He claims to have cultivated one hundred and eighty acres of rice: he avers that he made the necessary levees and other needful works on the number of acres cultivated by him, plowed them and planted good seed rice which came up in due time.

Petitioner urges that the defendant irrigating company failed to do that which it was bound to do under its verbal contract; that the weather was dry and no rice crop could be produced without irrigation; •and that he made repeated demands for water.

The defendant sought to meet the issue raised by plaintiff, by pleading the general denial .and by specially setting up that plaintiff made a crop that year without artificial irrigation and that he refused to take water from the defendant.

The written contract between the plaintiff and the defendant evidences that the defendant company agreed to furnish water for irrigating the plaintiff’s rice crop in 1898. The plaintiff bound himself to construct and keep in good order, under the supervision of the manager, all the distributing ditches and other necessary conduits, and that all levees were to be properly built. One of the clauses of the contract contained the stipulation that when plaintiff would need water he was to make application to the defendant company and let it know as near as possible the number of acres to be irrigated and “whenever water is wanted by said second party he shall give notice so that the distribution may be properly regulated.” There are other clauses in the contract of which we do not deem it necessary to take notice.

Plaintiff postponed availing himsef of the conditions of the contract. He repeatedly refused to take water and late in July he wrote to the president of the company, who was in Iowa, and received an answer informing him that “the company is doing all they can to supply you with water and are going to the expense of putting in relift in order to do this, so please sign up the lease and we will be responsible if we do not furnish you water. We do not care'to go to the expense of putting in a relift without we are sure that you could take water, so we hope that you will not allow this to interfere with your getting water.” (Excerpt from letter from President Miller of the company to Carr.) The plaintiff then signed the cntract, but- declining, the weight of the testimony shows, to receive water a few days after he had signed. When the written contract was signed, about seventy-five acres of the crop was in a hopeless condition. The remainder in the low land was yet in a condition to be benefitted by irrigation.

The following questions and answers, we think, are pertinent -to one ’ of the questions before us for decision, that is, whether plaintiff refused to receive water even after he had signed the contract. Brooks, it seems, was one of defendant’s employees, a “water boss,” who attended to the delivery of water to the farmers for irrigation:

“Q. — I want to ask you this question- — is it not a fact that somewhere about the 5th or 6th of August, at your home on the Webster farm and in the presence of Mr. A. Miller, Mr. Brooks came and asked you if you were going to take water, and you said you were not going to take water ?
“A. — He was there.
“Q. — Say ‘yes’ or ‘no.’
“A. — Yes, sir; he was there.
“Q. — You answered this man nothing when he asked you a question?
“A. — He asked me and I told him no. * * * He asked me if I was going to take water. Said I, ‘They have made no preparations. They had not before this prepared to put a lateral through there, and I said, ‘IIow are they going to water me now.’ ”

At another time in the trial, in rebuttal, this witness said:

“Q. — Did you ever refuse H. H. Lewis to take water from that company?
“A. — No, sir; I never did.
“Q. — Did you ever refuse to take water from Mr. Brooks?
“A.- — -No, sir.
“Q. — Did you ever say or state in a conversation either to Mr. Miller or Mr. Cardiff that you intended to make a providence crop and did not intend to take water from the company ?
“A. — I did not.”

The persons just named by plaintiff were witnesses in the case and their accounts, as witnesses, are entirely different from that of plaintiff.

The district court decided that the plaintiff was entitled to judgment for $2520.00 damages, subject to a credit of $500.00. From this judgment defendant prosecutes this appeal.

Plaintiff, as a witness, acknowledged on his cross-examination, that on the different days, the 27th of June and the 7th of July, he refused to sign a contract. He gives his reasons for not signing that it was because defendant would not make .preparations to give him water and yet, on the 2nd of August, when all the harm possible had been suffered by his crop, he signed a contract which he says in his testimony contained all the agreement made in the early part of the spring. The agreement referred to is the verbal agreement in question entered into in the early part of the year.

A verbal agreement is as binding as one which has been reduced to writing, but its terms and conditions must be shown by sufficient testimony.

The dilemma, as relates to plaintiff, is that he at first refused to sign a written agreement, and in August following he signed it and on trial testified that it contained all the terms and conditions of the original verbal contract. If this be the case, it is manifest, after reading this written contract, that plaintiff has not complied with it. He was to have the lateral ditches ready to receive the water and also the other necessary water conduits. This is clearly stated in the contract. Neither plaintiff nor defendant was prepared and ready to receive the water at any time. Under the written agreement embodying the conditions of the verbal agreement, as we have noted, he was to notify the defendant company when ready to receive the water. Not only was he never ready, but he did not furnish any notice as required in the contract in controversy, but at all times he positively declined to receive the water.

Defendant sought to prove, 'and did elicit from two of its witnesses, the statement that plaintiff said, during the season while cultivating his rice, that he intended to rely upon the showers for irrigation, and, it follows, not upon artificial irrigation. There is also testimony showing that about the time that plaintiff refused to receive water after the written contract had been signed it rained and ’the crop was thereby irrigated.

There can be no question that if it had rained prior to August 2nd, when the written contract was signed, and the fall of rainwater had sufficiently irrigated plaintiff’s crop, defendant would have had no claim for water supply, because, even according to plaintiff’s testimony, the verbal agreement included no stipulation regarding any rental, besides neither party, in our judgment, had made any serious attempts to comply with the agreement.

As this was the situation, in our judgment, the plaintiff is not in a position to claim damages for failure “to do” when he, according to his own testimony, had not bound himself to pay any definite consideration, although he had been several times requested to bind himself but which he declined to do before August 2nd.

The writer and organ of the court interpreted strictly defendant’s answer and held it to the letter of the; special plea interposed therein. This involved a denial of defendant’s plea of general denial, and led to an absolutely different conclusion. The majority of the court held differently and gave some effect to the plea of general denial,. and viewed the special plea as at most shifting the burden of proof and considered that it contained no absolute admission of itself which rendered the defendant liable.

Erom this point of view, the evidence sustains our decree. It is worth adding that the year 1898 was the first year that defendant undertook to irrigate rice land and it was also plaintiff’s first attempt to plant rice. There were shortcomings on both sides. In view of the contract and the testimony, we have arrived at the conclusion that the plaintiff left himself in no position to recover the damages claimed.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is hereby annulled, avoided and reversed. It is further ordered, adjudged, and decreed that plaintiff’s demand be and it is hereby rejected at plaintiff’s costs in both courts.

On Application foe Reheaeing.

Blanchaed, J.

The answer filed in this case is not viewed as setting up a special defense in conflict, or inconsistent with, the general issue pleaded.

Defendant in this answer “pleads the general issue and denies each and every allegation in plaintiff’s petition contained, and alleges that Amos G. Oarr, plaintiff herein, set out to make and did make a 'providence crop’ of rice upon the land he rented from Jas. R. Webster during the year 1898, and said Oarr refused to take water from the defendant company.”

There is here (1) a general denial of the averments of plaintiff’s petition; (2)' in aid of this general denial is the allegation that plaintiff relied upon Providence — i. e., precipitation from the clouds — for water to make his crop; and (3) so relying, he refused to take water from defendant company in the sense that he failed to make timely contract for water — delayed signing the contract until the damage or most of it had been done.

This by no means is to be regarded as a special defense admitting the verbal contract alleged by plaintiff to have been made in the early part of the year, and then seeking to avoid same by averments of plaintiff’s refusal to take water under the contract. It is not a plea of confession and avoidance.

On .the contrary, it is looked upon as a special denial of any such contract.

This left it incumbent on plaintiff to prove the verbal contract and he failed to substantiate the allegations of his petition in this regard. The preponderance of evidence is the other way.

The only contract sufficiently established to have been made is the written agreement of August 2, 1898. This document, which plaintiff avers embodied and was intended to embody the earlier verbal contract, fails entirely to refer to, or in any way to mention the alleged antecedent verbal contract. On the contrary, the obligation assumed by defendant company in this written contract is, clearly, one in presentí —to,,begin only from that date, for the language is: “said company hereby agrees to furnish water for proper irrigation of a rice crop,” etc.

Erom that day only, so far as this contract is concerned, was there obligation on the part of defendant company to supply water. And the weight of the testimony is that after signing the contract the plaintiff refused to avail himself of his water privileges thereunder — declined to take water. Following the signing there were some heavy rains and plaintiff seems to have trusted to these for a sufficiency of water.

The truth is the real damage to plaintiff’s rice crop had been incurred prior to the signing of the contract of August 2, 1898.

By far the greater loss he sustained was inflicted in July. He had relied upon the seasons and they were propitious in May and June, but failed him in July. The weather became dry in that month and a large portion iof his crop greatly deteriorated, became practically worthless.

The evidence establishes that before this damage had been thus occasioned plaintiff was solicited to sign the contract — the same he signed after the damage was done — and declined.

If he intended to rely upon irrigation from defendant’s canal to meet the requirements of his rice crop he should have seasonably signed the usual or customary contract for water. He had the opportunity to do this. He was asked to do it. He neglected to do so. .

He took his chances on a “providence crop” and must abide the consequences.

There was some small damage to his remaining crop, incurred after the 2nd of August (the date when he signed the contract), which might have been averted by irrigation, but since he declined to take water as per his privileges under the contract, he must abide the loss.

Had this plaintiff signed the contract (which he afterwards signed) seasonably, he would have had a case sounding in damages against defendant. While a verbal contract or agreement for a supply of water would have been binding on the parties, such contracts are difficult to establish with certainty and it is unsafe to rely upon them.

Behearing denied.

Breaux, J., adheres to views expressed in the original opinion as relates to the averments of the answer, and concurs in the decree.

Provosty, J., takes no part — this case having been submitted and decided prior to his taking his seat on this bench.


author: Blanchard, J.

text:
    No. 13,542.
    Widow Mary Muller vs. Jacob Hoth.
    When the record of a suit discloses enough to satisfy the court that the whole story of the case is not told, that essential facts have not been given in evidence, and important documents have been omitted, and that substantial justice cannot be done between the parties in the state of the record as filed here, the court will, in its discretion, in the interest of justice, remand the cause.
    APPEAL from the Civil District Court, Parish of Orleans —King, J.

      A. J. Lewis, for Plaintiff, Appellant.

      Bernard Titche for Defendant, Appellee.
   The opinion of the court was delivered by

Blanchard, J.

This is a petitory action for the recovery of a certain lot or parcel of ground in the City of New Orleans.

The plaintiff is the widow of Henry Muller, who died in 1882.

Several year's prior to his death, she had brought suit and recovered judgment against him for paraphernal funds and for separation of property and dissolution of the community of acquets and gains.

The year after this judgment was rendered she acquired by purchase, in her own name, authorized by her husband, from E. K. Washington, the property she now sues for andi which is described in her petition as a
“lot and a half of ground bearing the old municipal number 757 on St. Claude street, .composed of lot No. 16, measuring 31 feet lines deep, and the portion of ground adjoining said lot, being the half of lot No. 15, measuring 15 feet, 10 inches, 3 lines front on St. Claude street by 118 feet, 6 inches, 6 lines deep — all according to the plan by W. H. Bell deposited in the office of H. C. Dibble, notary public” — situated in the Third District of the city, in square No. 402, bounded by St. 'Claude, Clouet, Marais and Louisa streets.”

She avers due registry of this act of sale to her and that she went into possession of the property, from which possession she was evicted by the defendant in 1890.

She sues to be declared to be the owner of the property, for its possession, for rents and revenues, and for damages for unlawful dispossession, etc.

Defendant first filed exceptions of no cause of action and of prescription of three, five and ten years, and then, reserving benefit of his exceptions, answered averring his ownership of the property described in plaintiffs petition by chain of title substantially as follows:—

E. L. Hirstius had acquired it at sheriffs sale in May 1888. This sheriff’s sale took place at the suit of John Rexach vs. Mary Muller (plaintiff). This suit was a proceeding via executiva in foreclosure of a mortgage. This mortgage was retained to secure balance of purchase price, in an act of sale of the property from Jacob Hoth, Joseph Schemel and John Stumpf to Mrs. Muller. The price of this sale was $350, of which $100 was paid cash, and for the remainder, $250, she executed her promissory note, payable to her own order and by her endorsed. This was the note the mortgage secured. It was not paid. It seems to have passed from Hoth, Schemel and Stumpf to Rexach. The foreclosure suit was brought in his name, and at the sale Hirstius, who is the cousin of Jacob Hoth (defendant), bought the property.

Hirstius, then, in July following, transferred;, by act of sale, his title to Hoth, Schemel and Stumpf, each acquiring an undivided third of the property.

Then in June 1890, Schemel and Stumpf sold to Hoth their two-thirds interest.

The sheriff’s deed to Hirstius describes the property sold therein as follows:—

“A certain lot of ground with the buildings and improvements thereon, situated in the Third District of this city, designated as lot number 6 in square 402, bounded by St. Claude, Clouet, Louisa and Marais streets.”

■It is then recited that “said lot measures 47 feet front on St. Claude street by a depth of 118 feet,” and that the property sold is the same described in an act of sale passed before Legier, notary public, on the 18th of March 1887.

A reference to this act passed before Legier, notary, shows the same description, and it is there recited that the property is the same acquired by the vendors (in the sale before Legier, notary) at a tax sale from the State of Louisiana, sold to satisfy unpaid taxes due the State assessed against the property in the name of Henry Muller.

From which we gather that after Mrs. Muller acquired the property, in April 1878, from E. K. Washington, it had been assessed for taxes in the name of her husband, and had been sold after his death to pay taxes so assessed against it, and at this tax sale Jacob Hoth, Joseph Schemel and John Stumpf became the purchasers for the sum of seven dollars.

This tax sale was made in February 1887 under the authority of Act 82 of 1884.

It appears, further, that a few weeks following their purchase at tax sale, Hoth, Schmel and Stumpf conveyed without warranty to Mrs. Muller the title they had thus acquired.

This was the act passed before Legier, notary, above referred to, and the one where, as before stated, she paid $100 cash and executed her note secured by mortgage for $250.

We thus find the situation to be:—

1. Mrs. Muller acquired the property by purchase in 1878.

2. It is assessed for taxes not in her name, but in that of her husband.

3. He dies, and under this assessment the property is sold for taxes and bought by Hoth, Schemel and Stumpf.

4. Those parties convey their tax title to Mrs. Muller without warrantry — she paying a portion of the agreed price in cash and giving note for the remainder with mortgage to secure same.

5. This note passes to Rexach, who forecloses the mortgage and Hirstius buys at the sheriff’s sale.

6. He sells to Hoth, Schemel and Stumpf.

7. And then the two latter, convey theifi interest to Hoth, the defendant.

In setting out his chain of title in his answer herein filed the defendant omits all mention of the tax title. He goes no further back than Hirstius’ purchase in the foreclosure proceeding of Rexach vs. Muller. ■ The tax deed is found in the record, but does not appear to have been formally offered and received in evidence. What attempt was made m this direction was by plaintiff. Defendant’s object seems to have been to keep it out of evidence, for he resisted its offering.

Plaintiff’s contention in regard to this tax title is that it forms the basis of defendant’s whole claim to the property; that it was and is a nullity because the assessment for taxes, to enforce payment of which the sale was made, was in the name of one not the owner of the property, and because- the tax purchasers, having assumed payment of the taxes due the State subsequent to 1879 and not having paid same, acquired no title whatever; that they falsely represented themselves to her to be the owners and imposed upon her to the extent of causing her to be-lived they were owners, and under this belief she was led to purchase the property from them and accept their title and give her note for part of the purchase price with mortgages on the property; that she was at the time in possession as owner of the property in her own right; that the pretended vendors having no title themselves could and did convey none to her; that the subsequent foreclosure of the mortgage by Eexach, an interposed party, and the purchase at the sheriff’s sale thereunder by Hirstius, another interposed party, were but parts of the scheme to give a seeming reality to that which was actually without substance and void; that whatever possession the parties thus acquired of the property was in bad faith and not such possession upon which can be predicated the prescriptions pleaded; and that without replication plaintiff may attack all lines of defenses barricading her way to recovery.

Defendant adopts a line of defense which ignores the tax title. Yet it is the foundation stone of his claim to the property.

If it is to cut any figure in the case, it is likely, one of his contentions would be that the plaintiff, having accepted title from Hoth, Schemel and Stumpf, is estopped to deny they had any title to convey.

We reserve opinion on all questions and' contentions thus raised or mooted.

The case must be remanded. It is considered that the interest of justice require it. The tax title should be offered and received in evidence. It is part of the defendant’s chain of title, and he should offer it, and if he does not plaintiff should.

There should also be evidence to establish whether or not the taxes subsequent to 1879 assumed in the tax title were paid.

And there should be a survey ordered, or other means resorted to, to establish the identity, if such be the case, of the lots described in plaintiff’s petition, as acquired by her from E. K. Washington, with the lot No. 6, in square 402 as acquired by Hirstius at sheriff’s sale in May 1888, and as acquired previously by Hoth, Sehemel and Stumpf at tax sale in February 1887.

The descriptions in the two deeds do not tally and it is not considered that the evidence in the record makes the identification sufficiently clear and certain to base a final judgment upon.

It is, therefore, ordered and decreed that the judgment appealed from be set aside and annulled, and the case remanded to the court a qua for further proceedings according to the views herein expressed and the law — costs of this appeal to await the final determination of the case and to be then paid by the party eventually cast.

Nioholls, C. J., takes no part, having been absent at the argument.

Rehearing refused.


author: Monroe, J. Monroe, J.

text:
    No. 13,819.
    State ex rel. Thomas H. Thorpe vs. W. S. Frazee, Auditor of Public Accounts.
    Syllabus.
    1. The State Auditor is prohibited from drawing warrants upon the State Treasurer except in pursuance of specific appropriations made by law, and unless the person demanding á warrant can show such an appropriation no warrant should be drawn, and no mandamus to compel its drawing should issue.
    2. Act No. 87 of 1900 authorizes the State printer to contract with a competent lawyer, with the approval of the members of this court, to edit and index the decisions of this court, fixes the compensation, per annum, of such lawyer, and determines the manner in which, and the fund from which, he shall be paid ; but the duration of the contract, to be thereafter made, is not fixed, and there is nothing in the language of the act to justify the supposition that the General Assembly was attempting to make a continuing appropriation, for an uncertain time, and of an uncertain amount. The act does not, therefore, violate any provision of the Constitution to which our attention has been called.

      ^ PPEAL from Civil District Court, Parish of Orleans — Theard,- J.

      Ernest B. Kruttschnitt for Relator, Appellee.

      Walter Guión, Attorney General, for Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

Statement of the Case.

Monroe, J.

It appears from the record that the relator, upon the 31st day of July, 1900, entered into a contract with the State printer, agreeably to the provisions of the act of the General Assembly No. 87 of the session of that year, for the editing and indexing of the decisions of the Supreme Court of the State, for the term of two years, beginning August 1st, 1900, for a consideration of twelve hundred dollars a year, payable monthly; that the selection of the relator was approved by the chief justice and the associate justices of said court, and that he did the work, as contemplated by said act and contract, and received vouchers therefor, from the State printer, for the months of August, September and October, 1900, which vouchers he presented to the State auditor with the demand for warrants/ for corresponding amounts, but that the auditor refused to issue such warrants. The relator thereupon applied to the District Oourt for a writ of mandamus, and, having obtained a judgment making such writ peremptory, the matter has been brought before this court by appeal taken' on behalf of the auditor. The facts are admitted, but the “respondent avers that he has so refused to issue warrants to relator * * * because Act No. 87, under and by virtue of which relator claims the right to enter into the contract with the State printer,, and which is relied on by him as authority for the State printer to issue vouchers to him and for relator’s right to demand of respondent the issuance to him of warrants for the amount of said vouchers, is not an act appropriating, or providing for the appropriation of, money to be drawn from the public treasury; * * * that it does not make any specific application of any specific amount to be paid out of the public treasury * * * and that no specific amount is or has been appropriated'in, by, or through, said Act No. 87; and that no time has been fixed or prescribed by said act for the expiration of the period during which an appropriation should be made for the payment of the amount claimed; the whole in violation of the letter and spirit of Article 45 of the Constitution of 1898, which respondent now invokes in his favor as his reason for refusing the demand of the relator. Wherefore, averring that Act No. 87 of 1900 violates Article 45 of the Constitution of 1898, for the reasons aforesaid, respondent prays that said act be declared illegal, and not binding on respondent,” etc.

The statute in question, .so far as it is necessary to quote it, reads as follows, to-wit:

“Section 1. Be it enacted, etc., That the State printer be, and he is hereby authorized to contract with a competent lawyer, who must be approved by the judges of the Supreme Court, to edit and index the decisions of the Supreme Court, before publication thereof, under the direction of said judges, at a rate of compensation not exceeding twelve hundred dollars a year.
“See. 2. Be it further enacted, etc., That the compensation of the lawyer so contracted with shall be paid out of the general fund on monthly warrants issued by the auditor of public accounts upon the production of vouchers of the State printer.”

Article 45 of the Constitution of 1898, reads: “No money shall be drawn from the treasury except in pursuance of specific appropriations .made by law; nor shall any appropriations of money be made for a longer time than two years,” etc.

Our attention is also called to Section 184 of the Revised Statutes, which provides: “That no warrants shall be drawn by the auditor or paid by the treasurer unless the money to pay the same has been previously appropriated by law,” etc. And to Section 196, which provides that “should the auditor knowingly issue any warrant upon the treasurer not authorized by law * * * he shall be deemed guilty of a misdemeanor,” etc.

Opinion.

The attack which the respondent makes upon the constitutionality of the act upon which the relator relies, appears to us to be an unauthorized deduction from a premise, which, of itself, constitutes a sufficient defense to the action. Thus, the respondent, for cause why the writ of mandamus should not issue to compel him to draw his warrant upon the State treasury, says, in substance, “the act of the Legislature which the relator invokes, as entitling him to the money claimed, and as authorizing the auditor to warrant for, and the treasurer to pay, the same, is not an act appropriating or providing for the appropriation of money to be drawn from the public treasury, and as the auditor is prohibited by the Constitution and by statute, under penalty, from drawing warrants upon the treasury except in pursuance of a specific appropriation, made by law, I must decline to draw the warrant as requested.”

It is certainly true that no warrants are to be drawn on the treasury except in pursuance of specific appropriations, made by law; and if it be also true that the only law invoked by the relator fails to make such an appropriation, it must follow that no warrant can be drawn under its authority. So construed, however, the law in question, nevertheless, authorizes the State printer to contract with a competent lawyer to edit and index the decisions of the Supreme Court, fixes the amount of compensation to be paid for the work, from year to year, as long as the law stands unrepealed, and the manner in which, and the funds from which, the payment shall be made; but leaves the matter of the actual appropriation for such payment to be dealt with either as separate legislation or else in connection with the general appropriation bills. And, as thus construed, there is no reason apparent to us for declaring it unconstitutional.

It is argued by the learned counsel for the relator that said law makes an appropriation within the meaning of the Constitution and authorizes and makes it the duty of the auditor to issue his warrants as prayed for, but we are unable to reach the conclusion thus suggested. The act does not purport, either from its title or from its context, to be a law appropriating money. Its provisions are in the form of those constitutional and statutory enactments which establish offices and fix the amounts which the incumbents are to receive and the manner in which they are to be paid, but which leave the actual payment to be provided for, from time to time, as part of the general expenses of the government. Thus the Constitution itself fixes the salaries and terms of office of many judicial and other officers, and provides that such salaries shall be paid monthly, upon the warrants of such officers, but no one can doubt that a specific legislative appropriation is necessary as the authority of the auditor and of the treasurer for any actual payment of such officers.

Nor could it be otherwise consistently with the constitutional prohibition against the making of appropriations extending beyond two years. The position, or employment, authorized by the act upon which the relator relies, does not differ in this respect from positions established under the direct authority of the Constitution. The apparent purpose of the General Assembly was to provide for the editing and indexing of the decisions of this court, for the future, indefinitely; and the contract, for two years, between the State printer and the relator was made, necessarily, after adoption of the act in question, passed to give effect to that purpose. It is evident, therefore, that the lawmakers did not know, and could not have known, when the act was adopted, what length of time' the first contract which would be made under its authority would cover, or what amount of money such contract would call for, and it is not to be supposed that they undertook to make a continuing appropriation for an indefinite period and of an indefinite amount.

We conclude, therefore, that the Act No. 87 of 1900 makes no appropriation and attempts to make none, and this conclusion can not be-affected by the legislative history of the act, as given by the counsel for relator in their brief. We think it proper to say, here, that we very much regret the conclusion which we have been forced to reach, and which will have the effect of delaying the relator in obtaining the compensation, which he no doubt expected to receive promptly, for valuable, conscientious and efficient work, but, the law being as it is, there is no alternative.

It is, therefore, ordered,- adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that the demand of the relator be rejected and his'suit be dismissed at his cost.

Breaux, J., concurs in the decree.


author: Breaux, J.

text:
    No. 13,677.
    Emancipation of Helen Lane Lee.
    Syllabus.
    The tutrix and her ward differ regarding the latter’s ability to manage her own business affairs properly. The question is whether the minor has had sufficient experience. Witnesses are not in accord in' this respect. Near relatives testify that she has the capacity to take proper care of her interests as an emancipated minor. Others, equally as near, testify that in view of her inexperience and youth, her property should remain in charge of the tutrix.
    The minor has not sustained her application by a preponderance of proof. The court holds that there is no good cause for emancipation.
    APPEAL from the Civil District Court, Parish of Orleans— King, J.

      Charles Loque for Miss Helen Lane Lee, the Minor, Plaintiff, Appellant.
    ■ Thomas M. Miller for Mrs. Eliza Jane Lytle, Dative Tutrix, Appellee.
   The opinion of the court was delivered by

Breaux, J.

The minor sues for a judgment of emancipation and to be relieved from the legal disabilities attending minority. Her father and mother departed this life some time since. Mrs. Eliza Jane Lytle, her maternal grandmother, is her tutrix.

The minor alleges in her petition that she inherited property from the estates of her mother and father which she is capable of managing. The property of these two estates consists of a dwelling house valued at seventeen thousand five hundred dollars, other real estate of no great value, and some bonds in the possession of her tutrix. This property is held in indivisión, in equal portions, by petitioner and a younger brother and sister.

Her grandmother, the tutrix, answered the petition and specially denied that petitioner is capable of managing her own affairs. She avers, in substance, that she is wanting in experience sufficient properly to take care of her interests and see after her property. She charges that the disposition of her granddaughter and ward is to extravagance; that she has no idea of the value of money; and that if she be given the control of her property as owner, it will, in a short time, be expended and squandered.

The grandmother and tutrix alleges that if the objection of the petitioner is to her as tutrix, she will resign in favor of any one the court may see proper to appoint. This grandmother was a witness in the case and said quite earnestly, in substance, that petitioner was sadly in need of the experience and training necessary properly to take care of her interests? that she was not unnecessarily restrained; that she receives the most friendly treatment; and that her condition could not be improved by emancipation. The two younger children reside with this grandmother who is their tutrix. The old lady, who is seventy-two years of age, is corroborated by her son, who is an uncle of petitioner and who swears emphatically that because of her inexperience she is not capable of managing her own affairs. A-paternal uncle and an aunt are equally positive that she has all the experience and capacity needful to the proper management of her affairs.

Petitioner, in her own behalf, as a witness, testified and by her testimony shows that she is conversant with the limited business and property which is now in the hands of her tutrix.

The judgment of the District Court rejected petitioner’s demand, and from this judgment she prosecutes this appeal.

After the age laid down in the statute, a minor, it is true, may be emancipated, but the age itself is not exclusively to be considered. It must appear conclusively that the minor has the capacity to dispose of his property to good advantage and properly to manage his affairs.

To the opposition of the grandmother must be given some weight and unless it is manifestly unreasonable, it will not be disregarded and emancipation decreed. In our view, it is advisable to let things remain without dissolving the legal tie between these parties. The management of the property, in so far as the evidence discloses, is about all that has given rise to any difference of opinion between the grandmother and granddaughter. We judge that the property is now in safe hands. While it would be, perhaps, equally as well taken care of by petitioner and her interests be equally as well safe guarded by her as an emancipated minor, in view of her inexperience and youth, we are not of the opinion that she should be relieved from the disabilities of minority.

The prudence of' age and experience sometimes have their special value. We can not imagine it more useful and important than in seeking to protect the young to whom it owes special protection both under the terms of the law and because of family ties.

It is creditable to the young petitioner that, though doubtless anxious to be emancipated, she has not sought to prove that her grandmother, on account of her age, is incapable of administering as tutrix. On that score, the testimony does not show that there is the least ground for complaint. We feel justified in concluding that the tutrix is quite capable of seeing to the interests of this minor. We have'no reason to conclude, as, in substance, stated before, that the respondent tutrix is not properly administering in the interest of her minor ward. If we had, our decree would be for the petitioner. The testimony leads us to infer that the grandmother manifests proper solicitude for her granddaughter.

With reference to this minor, her own testimony, though intelligently and clearly expressed, does not justify the opinion that she has any settled plan about the disposition or management of her property, which renders it at all important to sustain her demand. There is a divergence of views among her nearest relatives regarding the advisability of her emancipation, but only because of her inexperience in business matters.

Considering the testimony and the jurisprudence- upon the subject, we have concluded that it is proper and legal to deny the emancipation. A constant jurisprudence upon the subject has decided that the onus of proof is with the petitioner for emancipation to satisfy the court that there is good cause for emancipation. We quote excerpts from two leading opinions upon this subject:

“The welfare of the minor will be promoted by the decree refusing emancipation.” In the matter of Amelia and Virginia Seghers, 10 A. 423.
“We deem it sufficient to indicate in our opinion that the minor has not made out a case entitling him to be emancipated.” Emancipation of Pochelu, 41 Ann. 321.

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

Provosty, J., takes no part, this case having been submitted prior to his taking his seat on this bench.


author: Nicholls, C. U

text:
    No. 13,676.
    Caroline Amelia Miller vs. The Minor, May Maud Miller et als. and Succession of Nicholas Miller and Wipe (Consolidated.)
    Syllabus.
    A grandfather left a will by which he bequeathed twenty thousand dollars to a minor grandchild, the daughter of a predeceased son, and the balance of his property he bequeathed to his children share and share alike. In this will he was dealing with his property in its entirety and not specifically, with reference to the disposable portion. The testator intended tha!t the minor should only take twenty thousand dollars out of the whole estate, subject to the right' of the minor, should she elect so to do, to claim her legitime. This claim being made on her behalf, she was not entitled to receive the legacy in addition to the legitime. The amount of the legacy had to be included and received as part of it. The minor having come to the succession by right of representation of her father, she was required to impute as a partial payment upon the legitime a sum of eight thousand dollars which her father had received as an advance thereon.
    APPEAL from the Civil District Court, Parish of Orleans— King, J.

      Buck, Walshe & Buck for Caroline) Amelia and William E. Miller, Appellants.

      Charles J. Theard, tutor ad hoc, for the Minor, May Maud Miller. Appellee.
   Statement of the Case.

The opinion of the court was delivered by

Nicholls, C. U

Nicholas Miller married Catherine Lenzer. She died intestate in 1865. There were four children, issue of the marriage — Caroline Amelia Miller, William Erancis Miller, Henry Miller, Nicholas Miller Jr., and Charles Albert Miller.

Nicholas Miller, Sr., died on March 25, 1900, leaving the following will and testament, which was duly probated:

New Orleans, March 2nd, 1892.
“This is my last will and testament.
“I, Nicholas Miller, being'in good health and of sound mind, do make this my last olographic will for the information of whom it may concern and for their guidance. Having confidence in my son, William Francis Miller, and also by friend, Frank Brinker, I appoint both of them my testamentary executors with seizin of my property, relieving them of the necessity of furnishing security or bond for the faithful discharge of their duty as executors; my sayed executors shall receive the usual legal commission. I give and bequeath to my niece, Rosine Brinker, the sum of three thousand dollars; to my two grandchildren, Edna Alice Miller, twenty thousand dollars; also to her young sister, May Maud Miller, twenty thousand dollars; both are children of my late deceased son, Charles Albert Miller, to whom I have already given in money and real estate to the value of eight thousand dollars.
“The balance of my property, real and personal, stocks, bonds, T shall die possessed of, goes to my then living children, share and share alike. It is my wish stocks, shares and bonds shall be divided evenly amongst them, and the real estate only sold at best advantage. I do! further will that during the minority of my two grandchildren my executors named are to invest the amount in safe securities and the interest thereof or as much as necessary for their maintenance and education, provided their mother be unable to do so, but under no circumstances shall more than the revenues be expended for their maintenance. The capital of forty thousand dollars herein bequeathed to my grand children are to be invested either in State of Louisiana or of constitutional City of New Orleans bonds.
(Signed) “Nicholas Miller/’

Caroline Amelia Miller and William Francis Miller are still alive

Henry Miller died intestate and unmarried in 1883. Nicholas Miller, Jr., died on April 2, 1900, leaving a last will, by which lie instituted his sister, Caroline Amelia Miller, and his brother, William Erancis Miller, as his sole and universal legatees.

Charles Albert Miller married Alice De Silva, and died intestate in 1892, leaving as his heirs the two minors, Edna Alice Miller, and May Maud Miller The minor, Alice Miller, died in 1893.

Alice DeSilva, widow of Charles Albert Miller, married S. L. Eobinson.

The inventory taken in the succession of Nicholas Miller, Sr., and his wife showed as the apparised value of real estate sixty-five hundred dollars ($6500), and of personal property four hundred and twenty-nine thousand four hundred and four dollars and eighty-four ($429,404.84), or a total of four hundred and thirty-five thousand nine hundred and four dollars and eighty-four cents ($435,944.84).

In May, 1900, Caroline Amelia Miller filed a suit for a partition against the administrator of Mrs. Nicholas Miller, Sr., the executor of the will of Nicholas Miller, Sr, William Erancis Miller, Mrs Alice DeSilva, widow of Charles Albert Miller (and afterwards wife of S. L. Eobinson) and the minor May Maud Miller. This minor, being without a tutor, the court appointed Charles J. Theard as her tutor ad hoc to represent her.

In her petition for partition the plaintiff, referring to the rights of the minor, alleged that “as the legacy of twenty thousand dollars to the minor May Maud Miller was 'less than the legitime after collation of the eight thousand dollars, which as heir of her father, she was bound to collate in accordance with the last will and testament of said Nicholas Miller, the said minor-will doubtless refuse said legacy and claim her legitime, in which event she will have an undivided interest in all the property belonging to the estate of Nicholas Miller, as-she has in the property of the estate of Mrs. Nicholas Miller, Sr.”

I he interest of the minor in the separate property of Nicholas Miller, Sr., if she claim her legitime, was averred to be an undivided two-twelfths (2-12) interest; that of Caroline Amelia Miller to be five-twelfths (5-12ths); that of William Erancis Miller an undivided five twelfths (5-12ths).

The tutor ad, hoc of the minor, for answer to plaintiff’s demand for a partition, averred that the minor as one of the forced heirs of Nicholas Miller, Sr., was entitled to her legitime, that is to say, one-fourth of the two-thirds of all the property left by said deceased, and on behalf of said minor he submitted that she was also entitled to receive out of the disposable portion of the estate the particular legacy of twenty thousand dollars, and he prayed that her rights be recognized and fixed accordingly.

In the judgment rendered by the District Court it was among other matter adjudicated, ordered and decreed, that the minor May Maud Miller be recognized as one of the forced heirs of the late Nicholas Miller, Sr.; entitled as such to her legitime, that is to say, to one-fourth of the two-thirds of all the property left by him, and that the said minor be also recognized as particular legatee of the said deceased entitled to receive out of the disposable portion of his estate, and under the conditions specified in his will, the sum of twenty thous- and dollars, that subject to the payment of said particular legacy and of any other particular legacy made by the late Nicholas Miller, Sr., and of all debts or charges whatsoever the property shall be partitioned in the following proportions, to-wit: The interest of the co-owners left by the late Nicholas Miller, Sr., are as follows:

Caroline Amelia Miller, five-twelfths.

William Francis Miller, five-twelfths.

The minor May Maud Miller, two-twelfths.

William F. Miller and Caroline Amelia Miller appealed. The parties agreed in the Civil District Court that the issue brought, to the Supreme Court on the appeal involved simply the question as to the amount or portion of the estate the minor defendant may take under the will of the deceased and the law.

Opinion.

Appellants insist that the heirs of the deceased having no ownership in his property prior to his decease, he had the right and exercised the right to convey title to the whole of it by his will, and that the rights and obligations of parties must be tested by a consideration of the instrument from that standpoint. The deceased did not in the will express any intention to deal with the disposable portion of the succession specifically as the object of his testamentary dispositions. He dealt with the entire succession and his testament conveyed his whole estate in so far as this could be done effectively, as in manner and form and extent provided for therein. Whether it would or not be and to what extent, it would’ or could be attacked, he left open to be determined by subsequent events. The testator made no express deelaration in the will as to his intention in reference to either the bequest to the minor or to that to the other heirs. We do not see in the situation of this succession anything' which would make such a declaration needed. His will dealt with his entire succession, and that instrument expressed very clearly the precise amount he desired his heirs should take in it and out of it. C. C. 1232-1233; C. C. 1501.

We have to construe his intention by the light of its general provi-, sions, and of the law of which he is to be presumed to have had knowledge, and by which he must be presumed to have been guided. We must assume that the testator was aware of the legal rights of his heirs, and the extent of his own power of disposition of his property.

The deceased, by his will, conveyed to his children, the whole of his estate, subject to the possibility of a claim being- made by the minor— forced heir — for her legitime. The forced heir has the option to claim his rights or not, and the will was executed in favor of the other heirs from that standpoint, and was so accepted by them The exercise by the forced heir of his right to claim the legitime would simply render that part of the will extending over that portion of the estate 'ineffective to the extent the minor could legally exact it.

If the situation of a succession be such as to enable all of the heirs to receive their legitime, no one of the heirs has legal' ground for complaint, if the testator ill the matter of the disposable portion should have thought proper to discriminate in favor of one or more heirs against another. There is no illegal inequality in the disposal of the disposable portion; the testator can dispose of it as it suits him. All we are called on to do is to ascertain his intentions and enforce them.

We think his intention and wish are clear, that the whole estate, less twenty thousand dollars, to be first paid to the minor, should vest in his oilier children share and share alike, subject to the possibility of a. demand by the minor forced heir for her legitime and subject to the legal enforcement of her rights in respect to the same, in manner, form, and to the extent as provided by law.

The will must stand as it is until attacked and set aside or modified, on a demand made by the minor, as a forced heir, that she was entitled to receive her legitime.

We do not see how it can. be claimed, in view of the express provisions of the Civil Code, that the death of a party leaving descendants has the effect ipso facto of depriving the testator of the ownership in property which belonged to him at thát moment. The law does not, by the force of its own will, immediately by the fact of death, transfer a portion of the estate to what are known as “forced heirs.” It will be observed that Articles 1493, 1494 and 1495 of the Code do not purport to make any change in the ownership of the property of the testator, and simply prohibit him from disposing o>f it to a certain extent to the prejudice of heirs holding certain relations to the deceased. He is at liberty to dispose of the whole property, subject, however, to the right of these heirs, if they feel themselves aggrieved, to have the will set aside to the extent necessary to secure to them as forced heirs, the legal portion coming to them. They are at liberty to make this claim only if they think proper to do so. If they do not make the claim the ownership conveyed by the will is maintained.

It is often supposed that by the term “forced heirs” the law has created a special kind of heirs, separate and distinct from the three kinds of heirs mentioned in Article 879 of the Oode, so that that article shsould read:

There are four (not three) kind of heirs which correspond with four (not three) species of succession, to-wit:

Testamentary or instituted heirs.

Legal heirs, or heirs of the blood.

Irregular heirs.*

Forced heirs.

This is a mistake. What are termed “forced heirs?’ are nothing more than certain legal heirs, who by reason of their relationship to the deceased have had reserved to them, the right to claim as heirs, if they so elect, a certain proportion of the property of the deceased, and which he may have disposed of “to their prejudice.” Article 1495 in referring to these heirs simply declares that they are “called” forced ^heirs, and assigns the reason for their being so “called.” They are not forcedly made heirs by the law, nor is the action of the deceased in disposing of his entire property forcedly and absolutely null. His action in so doing is only subject to a successful attack by these forced legal heirs under proper conditions and circumstances, when legally claimed and established.

In this particular case it is claimed on behalf of the minor that she is entitled to take the full amount of. the legitime coming to her regardless of the amount of eight thousand dollars, which her father in his life time had received from'his own father. It is urged that these eight thousand dollars, under the situation disclosed by the will, must he held to have been intended by Miller to be taken as a donation to the father from the disposable portion of his» estate, free from collation, that he did not intend to force the minor into the position of considering this amount as having heen received by her father simply as an “avancemeni d’hoirie" upon his legitime and as having, therefore, to be “imputed” as a partial payment upon the minor’s legitime. Appellant insists that this amount of eight thousand dollars received by the father can not be ignored in the settlement of the succession; that it must he deducted from the amount coming' to the minor from the legitime.

Article 1240 of the Civil Code declares that if “a child comes into the succession only by right of representation he must collate what has been given to his father,- even though he should have renounced his succession.” As applied to the legitime, we think, the word “impute” rather than the word, “collate,” should be used (Laurent, Vol. 12, Sec. 171.) The word “collation” in strictness is applied only to donations inter vivos. (Dalloz & Verge, under 843, No. 1), and the obligation rf collation is founded on the equality which should be naturally between children and other lawful descendants. (C. C. 1229). The "legitime” is a constant, fixed by law in favor of each heir’s part thereof. Delvincourt, Vol 2, P. 218, says: “‘La legitime ríest pas due en masse a lous les legitimates mais a chavan d’eux pour sa part et cclv.i qul a tout ce qui doit lui revenir dans Vindisposable ne peut attaquer ni faire reduire les liberalites.”

Appellants received their legitime under the will of their father. They could not attack any disposition made in fact by him of the disposable part of his estate, but they have the right to enquire what dispositions he did, in point of fact, make of this.portion, and force the settlement of the succession on that basis. They deny that Miller originally made a donation of these eight thousand dollars to the minor’s father from the disposable portion, free from collation, and they deny that he subsequently, in any manner released her from the obligation 'of taking that amount into consideration, should she claim her legitime.

We have to examine first, whether the eight thousand dollars, when received by the minor’s father, was received by him, as a donation strictly such, or whether it was received by him, simply as an “avancement d’hotie ” an advance or partial payment upon his prospective share in his father’s succession; next, whether (assuming the amount to have been received "en avanoemeni d’hoirie”) under the terms of the will and the circumstances of this case, that amount has to be accounted for or noticed in the ultimate settlement of the estate.

Receipt by an heir of an amount of money from his father in the absence of evidence to the contrary would be presumed to have been received by him as “an avancement d’hoirie,” and not as.a “donation” without collation. If so received, the money would have to be accounted for m the settlement of the succession by “imputation” as a "partial payment” on the child’s legal share in the succession, and not as a “donation” proper. Matters would remain in that shape and have to be disposed. of in that way unless the father should later on transform the transaction from a partial payment to the heir by anticipation into a donation from the father to the son without the obligation of collating.

Counsel of the minor calls our attention to the declaration made by Miller in his will, that he had already “given” to the minor’s father eight thousand dollars, and urges that he did not say that, he had already “paid” eight thousand dollars to the minor’s father, or that the latter had already “received” eight thousands dollars; that the word “give” means “to donate,” and Miller must have intended to say that he had! already “donated” that amount to his son; that it was his evident intention, when he wrote up his will, to pass a sponge over that particular transaction, and ignore it in the settlement; the allusion to the fact being solely made to explain why the minor was not given a larger legacy than he was making to her. He says that the will was made with knowledge of the exact situation of his affairs when it was made; that he was providing for the settlement of. his entire estate; that he was fixing himself, so far as he could, the exact situation of the heirs, towards himself and inter sese; that his failure to direct these eight thousand dollars should be accounted for in any way is proof positive that he intended it should play no part in the settlement of the succession.

This argument loses its force, when we consider that the testator was dealing with the property as being subject in its entirety to his power of disposition, and that the provisions of the will must be viewed from that point of view.

It was evidently his desire that his entire property, less twenty thousand dollars, should be bequeathed to his children, and not to his grandchild. That the grandchild should not receive more than twenty thousand dollars. The will was based, presumably, upon the hope and expectation that the minor might not claim the legitime, and that, under this condition of affairs the prior receipt by the father, of eight thous- and dollars, should pass entirely out of view. No reference was made whatever to what the situation would be if the minor should claim the legitime. Should she claim it, she would be entitled to receive precisely what the law would give her, as an heir by representation of her father; that is, the amount of the legitime, reduced by a partial payment thereof to her father of eight thousand dollars. The law fixes what the legitime is, and what can be exacted under it, when claimed. - If we were to ignore entirely the receipt by the minor’s father of eight thousand dollars from his father, we are of the opinion that we would bring about a result evidently not intended by him; this we would not be justified in doing. We are not called on to express any opinion whether he should or should not have made a difference indisposition of his property. We can only deal with the situation from a legal standpoint. '

We next come to a consideration of the part which the special legacy of twenty thousand dollars, will play in the ultimate settlement of the rights of parties. It is said on behalf of the minor that there is nothing to force her to renounce this legacy. That is true, but of what practical benefit would it be to her to claim the legacy, if the direct, immediate, and unavoidable result of her doing this would be to diminish to the same precise amount her claim for legitime. By legitime is meant the amount which the forced heir is entitled to call for in the succession. When she gets that amount she cannot, legally complain. She can insist upon nothing more. If the minor takes in this succession twenty thousand dollars from her grandfather, she has, to that extent, not been prejudiced by the action of'the grandfather. If she receive the legacy, she must, therefore, take the amount -as so much received from the succession and she will have to limit her claim against the succession for the balance of the amount necessary to be supplied to give her full legitime.

For the reasons assigned, it is ordered, adjudged, and decreed, that the judgment of the District Court, in so far as it decrees the minor, May Maud Miller, to be entitled to receive from the succession of her grandfather, Nicholas Miller, Sr., the special legacy of twenty thous- and dollars, made to her by her grandfather over and beyond her legitime, be, and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed, that if the said legacy be accepted and paid, it be taken as a payment protanto upon the minor’s legitime.

It is further ordered, that the judgment of the District Court be amended, so as to direct and require that the minor, May Maud Miller, impute upon her legitime as a partial payment heretofore made to her father, the sum of eight thousand dollars. As so altered and amended, the judgment of the District Court is affirmed.

Blanchard, J., concurs in the decree.

Provosty, T., takes no part, this case having been submitted prior to his taking his seat on this bench.